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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.395 of 2007 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Babaji Bagarty and others …. Appellants -versus- Biswambara Bagarty (dead) and others ..... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - For Respondents- Mr. R.K. Mohanty, Sr. Advocate. Ms. S. Mohanty, Advocate. Mr. Budhiram Das, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :05.04.2024 :: Date of Judgment :16.05.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellants of this 2nd appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.32 of 1991 and they were the appellants before the First Appellate Court in the First Appeal vide R.F.A. No.5 of 2004. The respondents of this 2nd appeal were the defendants before the Trial Court in the suit vide T.S. No.32 of 1991 and they were the Page 1 of 19 {{ 2 }} respondents before the First Appellate Court in the First Appeal vide R.F.A. No.5 of 2004. 3. The suit of the plaintiffs (those are the appellants in this 2nd appeal) vide T.S. No.32 of 1991 was a suit for partition against the defendants (those are the respondents in this 2nd appeal). 4.
Legal Reasoning
In order to have an instant reference, the genealogy of the parties is depicted hereunder:- Genealogy Bhagaban Bagarty Saheba Jadaba Dutiya 5. According to the averments made by the plaintiffs in their plaint, their common ancestor was Bhagabana Bagarty. Bhagabana Bagarty had three sons, namely, Saheba, Jadaba and Dutiya. The successors of said Saheba, Jadaba and Dutiya are the parties in the suit. They (parties to the suit) are governed by Mitakshayara School of Hindu Law. The successors of first son of Bhagabana Bagarty i.e. Saheba Bagarty are the plaintiffs and defendant Nos.1 to 3 in the suit. The successors of the 2nd and 3rd son of Bhagabana Bagarty i.e. Jadaba and Dutiya are the defendant Nos.4 & 5 in the suit. Page 2 of 19 {{ 3 }} According to the plaintiffs, the suit properties are the joint and undivided properties of the parties. The suit properties have not at all been partitioned between them through metes and bounds partition. But, for the sake of convenience and family maintenance, they (parties) are possessing different portions of the suit properties as per mutual understandings between them, for which, separate note of possession has been indicated in respect of some of the suit plots and the rest other suit plots have been shown as their izmali properties. The names of the defendant Nos.4 & 5 and sita (successors of Jadaba and Dutiya) have been separately recorded in respect of some of the suit properties and separate khatians (R.o.Rs) have been published in their names. For which, the said properties have not been included as the suit properties. But, during the 4th settlement operation, as the defendant No.1 (Ugrasen Bagarty) being the eldest member of all the three branches, he was entrusted to look after the settlement operation in respect of the suit properties. But, the said Ugrasen Bagarty had managed to record the major portions of the suit properties in his name exclusively, which is beyond his share, to which, he is not entitled as per law. Therefore, they (plaintiffs) requested the defendant Nos.1 to 3 on dated 10.06.1989 for metes and bounds partition of the suit properties, to which, they refused. Then, without getting any way, the plaintiffs Page 3 of 19 {{ 4 }} approached the Civil Court by filing the suit vide T.S. No.32 of 1991 against the defendants praying for partition of their legitimate share from the suit properties. 6. Having been noticed from the Court in T.S. No.32 of 1991, the defendant Nos.1 to 3 challenged the same by filing their joint written statement denying the averments made by the plaintiffs in their plaint by taking their stands therein that, the suit properties covered under Khata No.5, 6 & 7 were originally Bhogra lands and the said properties have been converted into Rayati status in the name of the defendant No.1 Ugrasen Bagarty along with Shankar Bagarty (father of the defendant Nos.2 & 3) and Basu Bagarty (brother of defendant No.1). Because, Ugrasen, Basu and Shankar are three brothers. The properties covered under Khata Nos.12, 14, 17 & 18 have been recorded in the name of defendant No.1 (Ugrasen) and his brothers i.e. Basu and Shankar in 4th settlement R.o.Rs. Though, the properties covered under Khata Nos.13, 15 & 16 have been recorded in the names of the members of the branch of the plaintiffs and defendants jointly, still then, they (defendants) denied the jointness of the said properties between them (defendants) and plaintiffs. Their specific case was that, the suit properties covered under Khata Nos.5, 6 & 7 were originally Bhogra lands. But, as per the policy decision of the Page 4 of 19 {{ 5 }} Government of Odisha, all the Bhogra lands were vested with the State free from all encumbrances. After vesting of the same, the Collector, Balangir exercising its statutory power in a Bhogra Conversion Proceeding vide Bhogra Conversion Proceeding No.564 of 1955-56 recorded the suit properties covered under suit Khata Nos.5, 6 & 7 in the names of the defendant No.1 (Ugrasen Bagarty) along with his two brothers i.e. Basu Bagarty and Shankar Bagarty (predecessors of the defendant Nos.2 & 3). Therefore, the defendant Nos.1 to 3 have derived their title over the suit properties covered under Khata Nos.5, 6 & 7. For which, the suit properties covered under suit Khata Nos.5, 6 & 7 were/are not their ancestral properties. Therefore, the plaintiffs are not entitled for any share from the properties covered under suit Khata Nos.5, 6 & 7. That apart, after conversion of the properties covered under Khata Nos.5, 6 & 7 to Rayati status in the name of the defendant Nos.1 to 3, the said properties are not open for partition. Therefore, claim of the plaintiffs for partition of the properties covered under suit Khata Nos.5, 6 & 7 is not tenable under law. Likewise, the suit properties covered under Khata Nos.12, 14, 17 & 18 are not the ancestral properties of the plaintiffs. The said properties are the exclusive and personal properties of the defendant No.1 along with his two brothers i.e. Basu and Shankar. For which, the said properties Page 5 of 19 {{ 6 }} covered under suit Khata Nos.12, 14, 17 & 18 have been recorded in favour of the defendant Nos.1 to 3 in the 4th settlement and they are in exclusive possession over the same and they are also paying rent for the same separately. For which, the properties covered under suit Khata No.12, 14, 17 & 18 are not liable for partition at the instance of the plaintiffs, because the plaintiffs have no interest in the same. The further case of the defendant Nos.1 to 3 was that, prior to Ex- Estate Regime, there was complete partition of their ancestral properties covered under suit Khata Nos.13, 15 & 16 between them (parties) and on the basis of such partition, the parties had/have been possessing the properties covered under suit Khata Nos.13, 15 & 16 separately and on the basis of their separate possession, in the 4th settlement, the separate note of possession in respect of the properties covered under suit Khata Nos.13, 15 & 16 have been specifically indicated, as their ancestral properties covered under suit Khata Nos.13, 15 & 16 have already been partitioned before the Ex-Estate Regime and acknowledging such partition separate note of possession of the parties have been indicate in the R.oRs of the 4th settlement on the basis of that previous partition in respect of the suit plots covered under suit Khata Nos.13, 15 & 16. For which, the said properties covered under suit Khata Nos.13, 15 & 16 are not liable for partition afresh, because the properties covered under that Page 6 of 19 {{ 7 }} suit Khata Nos.13, 15 & 16 have already been partitioned prior to the 4th settlement. As the properties covered under suit Khata Nos.5, 6, 7, 12, 14, 17 & 18 are the properties of the defendant Nos.1 to 3, the same are not liable for partition at the instance of the plaintiffs and as the properties covered under suit Khata Nos.13, 15 & 16 have already been partitioned prior to the Ex-Estate Regime, then the question of partition of the same afresh does not arise. For which, the plaintiffs are not entitled for the decree of partition in respect of the suit properties. Therefore, the suit of the plaintiffs is liable to be dismissed. The proforma defendant No.7 filed his written statement in support of the case of the plaintiffs. But, the rest other defendants were set ex parte. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (six) numbers of issues were framed by the Trial Court in the suit vide T.S. No.32 of 1991 and the said issues are:- I S S U E S (i) Whether suit Khatas 5, 6 & 7 are erstwhile Bhogra lands and settled exclusively with ancestors of D-1 to D-3? (ii) Whether suit Khatas 12, 14, 17 and 18 are ancestral properties or self-acquired properties of D- 1? Page 7 of 19 {{ 8 }} (iii)Whether there was any previous partition between the parties covering suit Khatas 13, 15 & 16? (iv) Whether all suit plots are liable to be partition as claimed by plaintiffs? (v) To what relief(s), plaintiffs are entitled to? (vi) Whether the suit is under-valued and whether the proper Court fees has not been paid? 8. In order to substantiate aforesaid case of the plaintiffs, they (plaintiffs) examined altogether 4 numbers of witnesses including the plaintiff No.1 as P.W.1 and relied upon series of documents on their behalf vide Exts.1 to 9. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the contesting defendant Nos.1 to 3 examined three witnesses from their sides including the defendant No.1(h) and the defendant No.4 as D.Ws.1 & 2 and exhibited several documents from their sides vide Exts.A/1 to E/1. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the plaintiffs and in favour of the defendant Nos.1 to 3 and basing upon the findings and observations made by the Trial Court in the issues against the plaintiffs and in favour of the defendant Nos.1 to 3, the Trial Court dismissed the suit of the plaintiffs vide T.S. No.32 of 1991 on contest against the defendant Nos.1 to 3 and ex parte against the defendant Nos.4 & 5 without cost as per its judgment Page 8 of 19 {{ 9 }} and decree dated 31.10.2003 and 19.11.2003 respectively assigning the reasons that, the plaintiffs have no interest over the suit properties covered under suit Khata Nos.5, 6 & 7, because the properties covered under suit Khata Nos.5, 6 & 7 are the properties of the defendant Nos.1 to 3 as the same have been settled in their favour through Bhogra Conversion Proceeding and on the basis of such settlement, they are entitled for the same, in which, the plaintiffs have no interest. Likewise after partition of the joint family properties, the properties covered under suit Khata Nos.12, 14, 17 and 18 were separately acquired by three brothers i.e. Ugresen, Basu and Shankar and as the said properties were separately recorded in their favour in the 4th settlement, in which, the plaintiffs have no interest. The properties covered under suit Khata Nos.13, 15 & 16 being their ancestral properties, the same were partitioned between the plaintiffs and the defendants through metes and bounds partition much prior to the 4th settlement and after partition, they were in separate possession on the same according to the allotments made in that partition. For which, during the 4th settlement, separate note of possession has been indicated plot wise separately according to their possession on the basis of their previous partition. Therefore, the question of partition of the said properties covered under suit Khata Nos.13, 15 & 16 afresh does not Page 9 of 19 {{ 10 }} arise. Accordingly, the plaintiffs are not entitled for the decree of partition in respect of the suit properties covered under any suit Khata. On the basis of the aforesaid findings and observations, the Trial Court dismissed the suit of the plaintiffs as per the above judgment and decree. 10. On being dissatisfied with the aforesaid dismissal of the suit for partition of the plaintiffs by the Trial Court as per its judgment and decree dated 31.10.2003 and 19.11.2003 respectively, they (plaintiffs) challenged the same by preferring the First Appeal vide R.F.A. No.5 of 2004 being the appellants against the defendants by arraying them (defendants) as respondents. 11. After hearing from both the sides, the First Appellate Court dismissed to that First Appeal vide R.F.A. No.5 of 2004 of the plaintiffs on contest as per its judgment and decree dated 17.08.2007 and 06.09.2007 respectively confirming/concurring the findings and observations made by the Trial Court in its judgment and decree against the plaintiffs and in favour of the defendant Nos.1 to 3 passed by the Trial Court. 12. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide R.F.A. No.5 of 2004 of the appellants/plaintiffs passed on dated 17.08.2007 and 06.09.2007 Page 10 of 19 {{ 11 }} respectively, they (plaintiffs) challenged the same by preferring this 2nd appeal being the appellants against the defendants by arraying them (defendants) as respondents. 13. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.- Whether the courts below are justified in dismissing the Bhogra conversion for partition, after (i) the suit proceeding? Whether the courts below are justified in dismissing (ii) the suit for partition on the ground of exclusive recording of the suit schedule land in the names of the defendant Nos.1 to 3 in the settlement R.o.R? 14. I have already heard from the learned counsel for the appellants
Legal Reasoning
(plaintiffs) and learned counsel for the respondents. 15. So far as the first formulated substantial question of law i.e. whether the courts below are justified in dismissing the suit for partition after the Bhogra Conversion Proceeding is concerned; It is the undisputed case of the parties that, the properties covered under suit Khata Nos.5, 6 & 7 were settled through Bhogra Conversion Proceeding No.564 of 1955-56 giving Rayati status on the same in favour of three brothers i.e. Ugrasen, Basu and Shankar i.e. in favour of defendant Nos.1 to 3 and the said settlement of the suit properties covered under suit Khata Nos.5, 6 & 7 in favour of the defendant Nos.1 to 3 through Bhogra Conversion Proceeding No.564 of 1955-56 has not at all Page 11 of 19 {{ 12 }} been challenged before any higher forums concerning the settlement of lands through Bhogra Conversion Proceeding either by the predecessors of the plaintiffs or by the plaintiffs. The effect of the settlement of the properties through Bhogra Conversion Proceeding like suit Khata Nos.5, 6 & 7 has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) AIR 1975 (Orissa) 219 (FB)—Manglu Jal and others Vrs. Bhagaban Rai and others—Wherein it was held that, Bhogra lands belong to the State and on settlement in rayati status the person getting rayati status derives exclusive right over the property. The Collector is the proper person to settle on rayati status. The Collector can settle with persons in possession as on 01.07.1955 and even collecting secret information about the same. The order of the Collector is conclusive subject to appeal before R.D.C. and is not open to challenge before Civil Court. The finding of Collector regarding the possession of the person as on 1.7.1955 is conclusive and it was specifically held in this reported judgment that Civil Court cannot take fresh evidence and cannot come to any conclusion that some other person was in possession as on 01.07.1955. The Collector in the exercise of jurisdiction determined the factum of possession and in so doing he might decide the question wrongly. The mistake, if any, could be corrected by way of appeal to the Revenue Divisional Commissioner. The Civil Court has no jurisdiction to examine the sufficiency or adequacy of the materials in support of the Collector’s decision and cannot sit in appeal over the Collector’s order. (ii) 2007 (II) CLR 477—Muralidhar Naik Vrs. State of Orissa and others—Bhogra Land—Bhogra lands to be settled with occupancy right thereon, only if a person is in actual possession of the same. Held, order of settlement passed in the Bhogra Conversion Proceeding having not been varied by any Competent Authority till date the settlement authorities rightly recorded in the land in the name of opposite party Nos.5 to 23. (iii) 2021 (II) CLR 146—Halayudha Satpathy and others vrs. Manaranjan Satpathy—Bhogra Lands—After vesting of Bhogra lands in the State, the suit lands were Page 12 of 19 {{ 13 }} settled by the Collector on the defendants in the Bhogra Proceedings on 04.06.1962 with effect from 14.04.1956 followed by grant of raiyat patta. Appeal filed by the plaintiff against the Bhogra Conversion order stood dismissed by the Revenue Divisional Commissioner—Suit filed by the plaintiff for declaration of title, confirmation of possession and injunction—According to the plaintiff, he continued in possession of the suit lands as before stating that, the settlement record prepared in the name of the defendants was wrong. Held, civil court cannot sit over the final order passed in the Bhogra Conversion Proceeding, unless there is challenge in the suit that, the statutory authorities under Bhogra Conversion Proceeding have acted unfairly, arbitrarily or capriciously and without exercising the powers within the ambit of the statute. 16. Here in this suit at hand, the order of settlement of the suit properties covered under suit Khata Nos.5, 6 & 7 in favour of the defendant Nos.1 to 3 through Bhogra Conversion Proceeding No.564 of 1955-56 and issuance of rayati patta of the said properties in their favour on the basis of such settlement made in the Bhogra Conversion Proceeding and recording of the properties covered under suit Khata Nos.5, 6 & 7 in their favour in the 4th settlement on the basis of the order of settlement of the properties covered under suit Khata Nos.5, 6 & 7 in the Bhogra Conversion Proceeding have not at all been challenged either by the predecessors of the plaintiffs or by the plaintiffs in any higher statutory authorities/forums of Bhogra Conversion Proceeding. For which, in view of the propositions of law enunciated in the aforesaid decisions, the said order of settlement of the suit properties covered under suit Khata Nos.5, 6 & 7 in favour of Page 13 of 19 {{ 14 }} defendant Nos.1 to 3 i.e. in favour of Ugrasen, Basu and Shankar as per order passed in Bhogra Conversion Proceeding No.564 of 1955-56 cannot and shall not be unsettled by the Civil Court. Therefore, the concurrent findings of the Trial Court and the First Appellate Court dismissing the suit for partition of the plaintiffs in respect of the properties covered under suit Khata Nos.5, 6 & 7 cannot be held erroneous. 17. So far as the second formulated substantial question of law i.e. whether the courts below are justified in dismissing the suit for partition of the plaintiffs on the ground of exclusive recording of the suit schedule land in the names of the defendant Nos.1 to 3 in the settlement R.o.Rs is concerned; It is also the undisputed case of the parties, the properties covered under suit Khata Nos.12, 14, 17 & 18 have been separately recorded in the 4th settlement in favour of the three brothers i.e. Ugrasen, Basu and Shankar and the said separately recorded properties covered under suit Khata Nos.12, 14, 17 & 18 in favour of defendant Nos.1 to 3 were not challenged either by the predecessors of the plaintiffs or the plaintiffs before any Authority till the filing of the suit vide T.S. No.32 of 1991, though the said R.o.Rs of the 4th settlement Page 14 of 19 {{ 15 }} in respect of the properties covered under suit Khata Nos.12, 14, 17 & 18 were published since long i.e. since 1963. Therefore, by taking into account to the pleadings, evidence and documents of the parties, it is the concurrent findings of the Trial Court as well as First Appellate Court that, the properties covered under suit Khata Nos.12, 14, 17 & 18 were acquired properties of three brothers i.e. Ugrasen, Basu and Shankar after their separation. For which, the aforesaid unchallenged R.o.Rs in respect of the suit Khata Nos.12, 14, 17 & 18 published on dated 19.04.1963 in favour of the defendant Nos.1 to 3 are justifying the separate acquisition of the said properties by them, in which, the plaintiffs have no interest. The conclusion drawn above by the Trial Court and the First Appellate Court holding the suit properties covered under suit Khata Nos.12, 14, 17 & 18 as the properties of the defendant Nos.1 to 3 on the basis of the unchallenged R.o.Rs for a long time find support from the ratio of the following decisions:- (i) 1993 (I) OLR 249—Biswanath Chowdhury and others Vrs. Shyam Sundar Chowdhury and after him Narayan Chowdhury and others—(Para 7)—Settlement Entry— Value—Does no confer title—But importance is attached where it is allowed to stand for a long time without being questioned. (ii) 1988 (II) OLR 475—Cuttack Municipality Vrs. Sk. Khairati (and after him) Jaitan Bibi and Others—(Para-5)— Page 15 of 19 {{ 16 }} Evidence-Record of Rights—Evidentiary value—It is evidence of possession and helps claim of title. (3) CCC 210 (iii) 2009 (SC)—Gangamma etc Vrs. G.Nagarathnamma & Others etc.—R.o.R.—The person in whose name a property is recorded, in absence of any evidence to the contrary, full owner of the same. (iv) 32 (1966) CLT-958—Ram Chandra Panda Vrs. K.Dandapani Dora & Others & AIR 1963 (Orissa) 29— Ramakrishna Panda Vrs. Arjuno Padhano & Others— Evidence Act, 1872—Section 101—Burden of proof—Record of Rights in favour of plaintiff—Defendant to prove title and prior possession. (v) AIR 1973 (Calcutta) 128—Sailendra Nath Ghosal Vrs. Smt. Ena Dutta—Person in whose name property stands is presumed to be owner—Onus on him, who denies. 18. When, it is the concurrent findings of the Trial Court and the First Appellate Court that, the properties covered under suit Khata Nos.12, 14, 17 & 18 were acquired by the defendant Nos.1 to 3 separately, in which, the plaintiffs have no interest. Therefore, the said properties are not liable for partition, then at this juncture, by applying the principles of law enunciated in the ratio of the above decisions, the said findings of the Trial Court and First Appellate Court cannot be held unreasonable. For which, the question of interfering with the same through this Second Appeal does not arise. 19. So far as the properties covered under suit Khata Nos.13, 15 & 16 are concerned; Page 16 of 19 {{ 17 }} It is the admitted case of the parties that, in the R.o.Rs of the 4th settlement (which was published on dated 19.04.1963), separate note of possession of the parties have been indicated in plot wise according to their possession in the remarks column of the plots. The said separate noting of possession of the parties in the R.o.Rs of the 4th settlement in suit Khata Nos.13, 15 & 16 in plot wise had also remained unchallenged till the filing of the suit by the plaintiffs. Because, neither the predecessors of the plaintiffs nor the plaintiffs had challenged the said noting of separate possession in plot wise in respect of the properties covered under suit Khata Nos.13, 15 & 16. 20. After taking pleadings as well as oral and documentary evidence of the parties into account, it is the concurrent findings of the Trial Court as well as the First Appellate Court that, the properties covered under suit Khata Nos.13, 15 & 16 were partitioned between predecessors of the parties much prior to the 4th settlement and accordingly, on the basis of such partition, the possession of the parties were noted in plot wise in the remarks column of the R.o.Rs of the 4th settlement in respect of the suit Khata Nos.13, 15 & 16 acknowledging the previous partition between the parties. The above concurrent findings of the Trial Court and the First Appellate Court regarding the previous partition of suit Page 17 of 19 {{ 18 }} properties between the parties covered under suit Khata Nos.13, 15 & 16 prior to the 4th settlement of the year 1963 find support from the ratio of the following decisions:- (i) 2019 (I) CLR 191—Dhonar Bhotra Vrs. Sardi Bhotruni and Others—(Para 9)—Suit for partition— Parties are in separate mess and separate cultivating possession of the properties—R.o.Rs showing separate note of possession of the parties in respect of different people— Concurrent findings of fact of both the Courts that, there was prior partition—No interference. (ii) 24 (1958) CLT—430—Jayakrushna Sahu and others Vrs. Sri Parameswar Sahu and others—(Paras 5 & 8)—Partition Suit—When the parties have been possessing lands separately for a long time, and further when they are exercising acts of ownership in respect of those lands, the Courts of fact are competent enough to give proper weight to such circumstances and come to the conclusion of completed partition. 21. When the concurrent findings of the Trial Court as well as the First Appellate Court about the previous partition of the properties covered under suit Khata Nos.13, 15 & 16 on the basis of separate noting of possession of the parties in plot wise in view of the ratios of the above decisions are not unreasonable, then at this juncture, question of interfering with the same through this 2nd appeal filed by the appellants (plaintiffs) does not arise. 22. When as per the discussions and observations made above, the concurrent findings of the Trial Court and the First Appellate Court concerning the dismissal of the suit for partition of the appellants (plaintiffs) have not become inacceptable under law, then at this juncture, Page 18 of 19 {{ 19 }} the question of interfering with the same through this 2nd appeal filed by the appellants (plaintiffs) does not arise. Therefore, there is no merit in the 2nd appeal of the appellants (plaintiffs). The same must fail. 23. In result, the 2nd appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court as well as by the First Appellate Court in dismissing the suit of the plaintiffs vide T.S. No.32 of 1991 are confirmed. Orissa High Court, Cuttack. 16th May, 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 11:14:35 Page 19 of 19