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Hara Prasad Das and ors. Vs. Ramballav Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 551 of 1978
Judge
Reported in1985(I)OLR464
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972
AppellantHara Prasad Das and ors.
RespondentRamballav Das and ors.
Appellant AdvocateP.K. Misra and M.J. Rao
Respondent AdvocateR.N. Mohanty, N.N. Nanda and A. Routray
DispositionPetition allowed
Excerpt:
.....it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - c-1 was a deed of family arrangement which was binding on the parties who had executed the same, as well as, their successors-in-interest......3 are the sons of jagmohan (petitioner no. 7). petitioner no. 8 is the wife of petitioner no. 7 opposite parties 1 and 3 are the son's sons of radhacharan. opposite parties nos. 2(a) to 2(f) were substituted in place of original opposite party no. 2, deity chaitanya deb represented by marfatdar janakiballav das, son's son of radhacharan. in o. s. no. 3 of 19.4 for partition in the court of the learned subordinate judge, puri most of the parties in the writ petition were parties, petitioners 1, 2 and 3 being the plaintiffs. the suit was decreed with the finding, inter alia, that schedule 'a' property of the plaint belonged to madhab and was inherited by petitioner no. 7, jagmohan and ext. c-1 was a deed of family arrangement which was binding on the parties who had executed the same,.....
Judgment:

K.P. Mohapatra, J.

1. In this petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing of Annexure 3 and 5 and restoration of Annexure 2 which are the orders passed by the appellate authority in Appeal Case No. 36 of 1976, the revisional authority in Consolidation Revision No. 49 of 1977 and the, consolidation office in Objection Case Nos. 371 and 524 of 1972 respectively.

2. Balabhadra had three sons, named, Padmacharan, Radhacharan and Madhab. Madhab was adopted to Gadadhar a stranger to the family. Madhab had no son and, therefore, he adopted Jagmohan, a son of Radhacharan. Petitioners 1, 2 and 3 are the sons of Jagmohan (petitioner No. 7). Petitioner No. 8 is the wife of petitioner No. 7 Opposite parties 1 and 3 are the son's sons of Radhacharan. Opposite parties Nos. 2(a) to 2(f) were substituted in place of original opposite party No. 2, deity Chaitanya Deb represented by Marfatdar Janakiballav Das, son's son of Radhacharan. In O. S. No. 3 of 19.4 for partition in the Court of the learned Subordinate Judge, Puri most of the parties in the writ petition were parties, petitioners 1, 2 and 3 being the plaintiffs. The suit was decreed with the finding, inter alia, that schedule 'A' property of the plaint belonged to Madhab and was inherited by petitioner No. 7, Jagmohan and Ext. C-1 was a deed of family arrangement which was binding on the parties who had executed the same, as well as, their successors-in-interest. The material portion of the judgment is quoted below for easy reference :

'...As the sale deed dated 25.11.1950 is a void one and has not been acted upon, the plaintiffs are entitled to have the properties covered thereunder, partitioned. The properties described in schedule 'A' of the plaint except those transferred in favour of defendants 2 to 9 under Ext. C-l, be partitioned allotting 3/5th share to the plaintiffs.'

Against the judgment there was an appeal before the District Judge, Puri in Title Appeal No 68 of 1966 in which it was held that the deed of family arrangement Ext. C-l was a fraudulent document. On dismissal of the appeal, Second Appeal No. 268 of 1969 as also a cross appeal were preferred in this Court. The second appeal and the cross appeal were both dismissed and this Court held as follows :

'...Different parties who are related to each other and had disputes to settle agreed to treat all properties belonging to them to be put into a pool and got them allotted themselves separately. This is what was done in Ext. C-l. I find considerable force in the contention of the respondents that the lower appellate Court was not correct in treating Ext. C-l as a fraudulent transaction. The consideration in giving up 36 acres of land belonging to the defendant No. 1 was not the receipt of the 3 acres of land from Balabhadra's family. It was resolving the disputes relating to adoption of the defendant No 1. To avoid future trouble and buy peace in the family the family arrangement was entered into. It has been given effect to and acted upon. Once it is taken as a family arrangement it must be taken to be binding and the plaintiffs who were subsequently born would not be entitled to dispute the arrangement. Their claim in regard to partition of 'A' schedule property has, therefore, been rightly rejected. ...'

As a consequence of the judgment passed in the second appeal, the property described in schedule 'A' of the plaint excluding the property described in the deed of family arrangement (Ext. C-1) are to be partitioned amongst the family members, of Jagmohan. The disputed plots are C.S. Plot No. 361 with an area of Ac. O. 34 decimals and C. S. Plot No. 363 with an area of Ac. O. 89 decimals in C. S. khata No. 167. The corresponding description of the plots in 1966 settlement operation is plot No. 341 with an area of Ac. O. 32 decimals and plot No. 343 with an area of Ac. O. 90 decimals pertaining to khata No. 131. The corresponding L. R. plot Nos. are 300 and 409 with an equal area of land. The disputed C. S. plots found place in schedule 'A' property of the plaint and did not find place in the deed of family arrangement (Ext. C-l)-Nevertheless, some of the opposite parties raised objection before the consolidation officer for joint record of the disputed plots in the names of the family members of Jagmohan and Balabhadra, The consolidation officer, by his order Annexure 2, interpreted the Civil Court judgments correctly and directed that the disputed plots be recorded exclusively in the names of the petitioners. But the appellate and revisional authorities construed the Civil Court judgments in a different manner directed that the disputed plots be recorded jointly in the names of the petitioners and opposite parties. While it is submitted by the petitioners that the interpretation made by the consolidation officer in Annexure 2 is correct, the opposite parties have contended that the orders passed by the appellate and the revisional authorities in Annexures 3 and 4 should be upheld.. Therefore, in short, the dispute between the parties is whether, according to the jugdments of the Civil Courts, the disputed plots should be exclusively recorded in the names of the members of the branch of Jagmohan, namely, the petitioners, or the same should be recorded jointly in the names of the members of the branches of Jagmohan and Balabhadra, namely, the petitioners and the opposite parties.

3. Annexure 7 is the decree in Orginal Suit No. 3 of 1964 of the Court of the learned Subordinate Judge, Puri which includes schedule 'A' property of the plaint. Schedule 'A' property includes both the disputed plots as recorded in C. S. record-of-rights. Copy of Annexure C-l had not been produced by any of the parties as an annexure. It is, therefore, not possible to know if the two disputed plots were included in the said document or not. After the hearing of the writ petition was over, on 15. 1. 1985, learned advocate for the opposite parties produced the xerox copy of a document from which it is not possible to get any indication that it is actually the xerox copy of the original document (Ext-C-l). The disputed plot numbers do not find mention in this document, even if it is assumed that it is the xerox copy of Ext. C-l It is therefore, apparent that the disputed plot numbers do not find place in the deed of family arrangement (Ext. C-l), while they find place in schedule 'A' of the plaint. So, according to the decision of the Civil Courts culminating in Second Appeal No. 268 of 1969, schedule 'A' property of the plaint including the disputed plots have to be partitioned amongst the members of the branch of Jagmohan. The property described in the deed of family arrangement (Ext. C-l), shall not form the subject matter of such partition. The resultant effects, therefore, is that the disputed plots cannot be recorded jointly in the names of the members of the branches of Jagmohan and Balabhadra including the petitioners and the opposite parties respectively. As decided by the Civil Courts, the disputed plots exclusively belonged to the branch of Jagmohan including the petitioners alone. The impugned orders of the appellate and revisional authorities in Annexures 3 and 4 directing joint record of the disputed plots in the names of the members of the branches of Jagmohan and Balabhadra including the petitioners and the opposite parties cannot be supported and have to be quashed. The order of the consolidation officer contained in Annexure 2 being in accordance with the judgment of the Civil Court should be restored.

4. Before concluding we deem it appropriate to observe that the consolidation authorities should strictly interpret the judgments and decrees of the Civil Courts which have become final inter-parties. They should not interpret them in a manner so as to take away their intended effect. They should remember that concluded judgments and decrees of the Civil Courts inter-parties cannot be questioned by any authority, much less the consolidation authorities.

5. In the result, the writ petition is allowed, Annexures 3 and 4 are quashed and Annexure 2 is restored. Hearing fee is assessed at Rs. 100/-.

J.K. Mohanty, J.

6. I agree.


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