YUGAL PRASAD DEWANGAN Vs. KANAKBATI

JUDGEMENT

(1.) By this Second Appeal, the Appellant has challenged the legality & propriety of the judgment and decree dated 10.9.2001 passed by the Additional District Judge, Bastar at Kanker, in Civil Appeal No. 13-A/96, affirming the judgment and decree of dismissal of the suit and decreeing the suit filed on behalf of Respondents No. 1 to 5/Plaintiffs for partition and separate possession dated 8.10.96 passed by the Civil Judge Class-II, Narayanpur, in Civil Suit No. 4-A/91.

(2.) The present appeal is admitted for consideration on the following substantial questions of law:

(3.) As per pleadings of the parties i.e. Respondents No. 1 to 5, predecessor-in-title of Respondents No. 1 to 5 deceased Janak Prasad Dewangan and Appellant Yugal Prasad Dewangan are sons of Neelkanth Dewangan. Total 38.46 acres of the land was held by Neelkanth Dewangan situated at village Narayanpur. The property was ancestral property. The present Appellant and Janak Prasad Dewangan (since deceased) were entitled for half of the share of the property left by Neelkanth Dewangan. Janak Prasad Dewangan was in Government service and was posted in the places other than Narayanpur. The Appellant was residing with his father. Father of the Appellant had given 12.59 acres of the land bearing khasra Nos. 2151, 2157, 569/1, 2251/1 and 2259 to Janak Prasad Dewangan for agricultural only on the ground that he is not in a position to cultivate the entire land or substantial part of the land. Fourteenth years prior to filing of the suit dated 26.2.91, properties were not partitioned between both brothers. Neelkanth Dewangan died in the year 1983. During his life time, Neelkanth Dewangan has executed one document in the style of Vavasthapatra relating to 25.57 acres of the land in the name of the Appellant which does not give any right and title to him. No partition was possible by the said Vavasthapatra. The Appellant succeeded and mutated his name in the revenue record relating to 25.41 acres of the land, but the same does not give any right or title to the Appellant. Cause of action arose in the year 1983 after death of his father when the Appellant refused to give share to Janak Prasad Dewangan. Then suit for partition and possession was filed on 26.2.1991. By filing written statement the present Appellant denied adverse allegation made in the plaint and has specifically claimed that during lifetime of Neelkanth Dewangan vide registered Vavasthapatra dated 22.6.1971 has given 25.57 acres of the land to Appellant out of 31.46 acres of total land. Properties were self-acquired of Neelkanth Dewangan and he was entitled to give the land to the Appellant by Vavasthapatra. Name of the Appellant was mutated in the revenue record and he is in possession over the land since 22.6.1971 despite the objection of Janak Prasad Dewangan. Again in the year 1976 Janak Prasad Dewangan has filed an application for mutation of his name in the revenue record which was dismissed on account of compromise vide order dated 14.2.1977. On the basis of averments made by the parties, issues were framed and after providing opportunity of hearing to the parties, learned Civil Judge Class-II, Narayanpur has decreed the suit and declared that Janak Prasad Dewangan is entitled for half of the share and possession over the entire property of 38.46 acres of the land recorded in the name of Neelkanth Dewangan. Same was challenged in the appeal. By the judgment and decree impugned, the lower appellate Court has dismissed the appeal.