Orissa High Court
In The Matter Of Appeal Under ... vs Unknown on 2 December, 2021
HIGH COURT OF ORISSA : CUTTACK
RSA NO.177 OF 2009
In the matter of appeal under Section-100 of the Code of Civil
Procedure assailing the judgment and decree passed by the learned
Additional District Judge, Gajapati, Paralakhemundi in RFA No.2 of
2006.
.........
Chinnodu Sabara :::: Appellant.
-:: VERSUS ::-
Gunnamma Sabara
@ Gumanna Sabar & Others :::: Respondents.
Advocate(s) who appeared in this case by hybrid arrangement
(virtual/physical) mode.
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For Appellants ... M/s. P.K. Mishra & S.K. Dash,
Advocates
For Respondents ... None
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PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of Hearing & Judgment: 02.12.2021
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D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of
the Code of Civil Procedure (for short, 'the Code') has challenged the
judgment and decree passed by the learned Additional District Judge,
Gajapati, Paralakhemundi in RFA No.2 of 2006.
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By the said judgment and decree while dismissing the First
Appeal filed by the Appellant (Defendant No.1) under section 96 of the
Code, the First Appellate Court has confirmed the judgment and decree
passed by the learned Civil Judge (Senior Division), Parlakhemundi in
C.S. No.10 of 2005.
2. The Respondent Nos. 4 to 7 are the Plaintiffs whereas the
Appellant is the Defendant No. 1 and the present Respondent Nos.1 to 3
are the Defendant No. 2 to 4 in the suit.
3. 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 Trial Court.
4. The Plaintiffs' case in short is that one Subunath @ Subuna Sabar
was the ancestor of the parties. His three sons namely Appanna,
Chinnodu and Dema are all dead. The Plaintiffs are the legal heirs of
Aappana whereas the Defendants are the successors of Chinnodu. Dema
Sabar died leaving behind his widow Demi and their only daughter
namely, Lokamma @ Lachamma has died unmarried. She suffered for
some time and the Plaintiff Nos. 1 and 2 were taking her care. They
performed all her funeral rites and had spent a sum of Rs.25,000/-
towards treatment and expenses in the performance of the obsequies.
The suit land is said to be the property of Dema Sabar. So after the death
of Demi and her daughter, the Plaintiffs and the Defendants succeeded
to the same. They had effected an amicable partition in the year 1995
wherein the suit property was divided in half and half; one half going to
the Plaintiffs and the rest half to the Defendants. They accordingly
possessed the land separately and paid the land revenue. On 8.12.2004
the Defendant No. 1 filed a Mutation Case bearing No. 1643 of 2004 to
delete the name of Dama Sabar from the Hal settlement ROR and few
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days thereafter the Defendants forcibly occupied the allotted share of
land of the Plaintiffs which was in occupation of the Plaintiffs.
Projecting the same as the cause of action, the suit has come to be filed
with a prayer to declare that they have half share over the suit property
left by Dema.
5. The Defendants filing the written statement jointly have admitted
Dema Sabar to be the owner of the suit land. However they have denied
the factum of partition of the property between them. The genealogy
presented by the Plaintiffs is not admitted. They state that Subunath @
Subuna Sabar had two sons namely, Appanna and Dema. According to
them, Dema died leaving behind his widow Demi, only son named
Taudu and a daughter namely Lachamma @ Lokamma. The Defendants
claim to be the legal heirs of Taudu. It is their case that the suit land was
the property of Dema Sabar and his only son Taudu inherited the suit
property and remained in cultivable possession. It is also their case that
Lokamma died at a young age and all her obsequies were performed by
them meeting all such expenses. They assert that as the suit land is the
self-acquired property of Dema and was recorded in his name which
they have succeeded to. According to them, the Plaintiffs have no right,
title and interest over the suit property and that being so, there was no
any need even for partition of the same amicably as projected by the
Plaintiffs and that theory is out and out false.
6. With the above rival pleadings, the Trial Court framed as many as
five issues. First taking up the issue as to the legal heirships and
successors of Subunath @ Sununa Sabar and the claim of the Plaintiffs
to have succeeded to the suit properly with the Defendants as having
half share over there. In that exercise, the evidence on record being
scanned; the Trial Court has said that Dema's wife predecessors him and
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his daughter Lokamma is dead. He had no direct descendant to succeed
to his property. It is further held that the Plaintiffs are the successors of
Appanna and the Defendants are the heirs of successors of Chinnodu. So
they have jointly succeeded to the property. Thus the first issue is
answered that the Plaintiffs have the half share over the suit property
whereas the Defendants entitled to the rest half.
This has finally led to decree the suit by declaring that the
Plaintiffs have half share over the suit property when the Defendants are
having the rest half.
The First Appellate Court being moved by the Defendant No.1
feeling aggrieved by the above decision of the Trial Court upon
independent analysis of evidence at its level affirming the findings; thus
has given the seal of approval to the result rendered in the suit.
7. Learned counsel for the Appellant submits that the courts below
have committed the error in accepting the case of the Plaintiffs that
Subuna Sabar had three sons namely, Appanna, Chinnodu and Dema
when in the cause title itself, the Plaintiffs have described Chinnodu as
the son of Taudu. This important aspect having been lost sight of by the
courts below, it is said that the finding so recorded is unsustainable.
According to him, based on the above description given by the Plaintiffs
in the cause title, there was no further need to look into the evidence. He
therefore urges for answering the above substantial question of law.
8. Keeping in view the submissions made, I have carefully read the
judgments of the courts below.
Based on the respective pleadings of the parties, have laid
evidence and in view of the controversy raised therein, the description in
the cause title cannot be taken as having final say on the issue that
Chinnodu is the son of Taudu. So the courts below even though have not
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so mentioned in the judgment about that description given in the cause
title indicating Chinnodu, s/o- Taudu, having gone through the evidence
in finding out the answer to the issue, the courts below cannot be said to
have committed any such error. The evidence on record thus if would
lead to accept the above fact also to the heirship of Chinnodu, the
description in the cause title so given would only stand to further
support and therefore in the facts and circumstances, the courts below
have followed the right path. The record of right concerning to the suit
land has been proved as Ext. 1 and it stands in the name of Dema, s/o-
Subunath @ Subuna Sabar. Ext. 2 series, the rent receipts filed by the
Plaintiffs would show that they are paying the rent towards Ac.1.00 dec.
covered under said suit khata No. 7 which is approximately half of the
total area finding mention there in the said record of right.
The Defendants at one place in the written statement state that
they being the successors of said Dema are entitled to the entire suit land
to the exclusion of the Plaintiffs, however at another place, it is stated
that Dema when did not get any share in the ancestral property; his
brother i.e. Appanna who happens to be the father of the Plaintiffs is
also not entitled to any share therein. The suit land as the self-acquired
property of Dema is not stated clearly by the witnesses as to how Dema
acquired the property. At this juncture, the evidence relating to the
dealing of the suit land being seen, it is found that the Plaintiffs have let
in oral evidence to prove their possession which finds support from
Ext.2 series, the rent receipts.
9. With above evidence on record, the courts below having
concurrently held the entitlement of the Plaintiffs as to half share and
those of the Defendants as to the rest half over the same; this Court finds
that the same does not suffer from the vice of perversity.
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10. For the aforesaid, the submission of the learned counsel for the
Appellant fails.
11. In the result, the Appeal stands dismissed. No order as to cost.
(D. Dash),
Judge.
Aksethy
