HIGH COURT OF ORISSA
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Panigrahi, C.J. -
(1.) The litigation giving rise to this second appeal has had a chequered career. The plaintiffs sued for a declaration that the registration of defendant No. 1 as the thikadar of village Jhidki in Tahsil Nawapara is contrary to law and that plaintiff No. 1, Gangadhar Kumbhar (who is the appellant before us) is entitled to be the sole thikadar of the village which forms the subject-matter of the suit. The plaint allegations are that the father of the parties, the deceased Bhakti Kumbhar, was the last recorded thikadar of the village and that Gangadhar plaintiff 1 and Dinabandhu father of plaintiff No. 2 are the sons of the deceased Bhakti Kumbhar by his first wife and that the defendants Dinadayal and Kalana are the illegitimate sons of Bhakti through a mistress kept by him. It is further alleged that the village Jhidki having been carved out of the impartible Khariar estate is inalienable and impartible and that succession is regulated by the rule of primogeniture. Gangadhar being the eldest son of the senior-most line claims to have succeeded by survivorship to the thikadari interest, to the exclusion of the other sons of the deceased Bhakti. The defendants resist this claim on the ground that the plaintiffs had separated from, the family and were living as divided members at the time of the death of Bhakti. The defendants also allege that they are the legitimate sons of the third wife of Bhakti and were living joint with him at the time of his death. It is accordingly claimed that they are entitled to succeed to the thikadari tenure under Section 109, Central Provinces Land Revenue Act (C. P. Act II of 1917). The revenue authorities upheld the claim of the defendants relying on the aforesaid Section and directed that Dindayal should be registered as thikadar of the village in preference to the plaintiff.
(2.) Two of the issues raised in the court of first instance need only be considered in this appeal, namely,
(1) whether the plaintiffs had been separate from the defendants and Bhakti and defendants were living joint in all respects as alleged? and (2) Has the suit property devolved upon the defendants by law of survivorship as alleged? The trial court found that the defendants were the legitimate sons of Bhakti and that the plaintiffs had been living divided from their father. It was further held that succession to the suit property was governed by the law of primogeniture as, admittedly, the thikadari interest was impartible. In the opinion of the trial court the Hindu Law of succession was modified by Section 109, Central Provinces Land Revenue Act, 1917 and the defendants were entitled to succeed to the tenure in preference to the plaintiffs. The suit was accordingly dismissed. On appeal the learned District Judge while upholding the findings of the trial Judge on the issue of the illegitimacy of the defendants and the divided status of the plaintiffs was of the view that Section 109, Central provinces Land Revenue Act was not applicable to the facts of the case as that Section governed succession to protected thikadari tenures and had no application to the facts of the present case which related to an unprotected thikadar. The learned District Judge, therefore, framed an additional issue, set aside the judgment of the trial court and remanded the suit for a fresh trial. The additional issue framed was as follows:
"What is the rule of succession that prevails in the case of an ordinary thikadari interest?" On the re-hearing of the suit by the learned Sub- ordinate Judge, Sambalpur, additional evidence was adduced by both parties regarding the custom that prevailed in the case of succession to thikadari interests. The learned Subordinate Judge held, on a consideration of the evidence, that plaintiff No. 1 being the eldest son, was entitled to get the suit thikadari tenure after the death of Bhakti, and passed a decree in his favour. This judgment was, however, reversed by the lower appellate court on the view that the plaintiff having separated from his father had lost his right as a senior member to take by survivorship. It is against this judgment of reversal that the plaintiff No. 1 has come up in appeal.
(3.) The concurrent findings of fact of the Courts below are that the plaintiff was living divided from his father at the time of his death; that, the late Bhakti Kumbhar was an unprotected, thikadar of the suit village which, admittedly, is impartible; that the suit village was joint family property in the hands of Bhakti and had not been the subject-matter of partition among the members of the family at any time. Mr. Mohapatra learned counsel for the respondents, attempted to raise a new question of fact, before us, namely that it had not been proved that the suit village was the ancestral property of the parties. It had been assumed throughout, that the property belonged to the family though, the manner in which and the time when the property was acquired for the family were differently stated by the parties. According to the plaintiff the property was acquired during their grandfather's lifetime, while according to the defendants it was acquired by Bhakti himself. It is clear, however, that the defendants neither alleged, nor attempted to prove, that it was the self-acquisition of Bhakti. It is not open to the respondents to raise a new point at this late stage-particularly when it had not been alleged in the-pleadings. It was also conceded by learned counsel for the respondents that Section 109, Central Provinces Land. Revenue Act, 1917, has no application here as that Section, in terms, applies to protected thikadars. It was, however, contended that the principle underlying that Section should be applied to cases of upprotected thikadars as well. We are not prepared to accept this contention as sound. Succession to impartible property is governed by the ordinary Hindu law of succession applicable to partible property, except to the extent modified by custom. No custom has been proved ink this case so as to enable a junior member to succeed to an impartible estate in preference to the senior line; and the principle embodied in Section 109, Central Provinces Land Revenue Act is a statutory enactment not based on custom. If there was such a custom there would have been no need for a legislative enactment.;
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