PITAMBAR SARANGI Vs. RUKUNI SARANGI

JUDGEMENT

(1.) This appeal has been preferred challenging the judgment and decree passed by the learned District Judge, Bolangir in Title Appeal No.28 of 1997 confirming the judgment and decree passed by the trial court in Title Suit No.91 of 1993. The suit of the present appellant has been decreed in part refusing the relief of declaration of right, title and interest over Ac.0.09 dec. of land under Plot No.393 assigned with holding no.59 of village Raximunda. The appellant had challenged that part of the decree in the lower appellate court and after having been unsuccessful has approached this Court as above.

(2.) Facts of the case are stated hereunder: The suit was filed by the appellant as plaintiff for declaration of his right, title and interest over land measuring Ac.0.16 dec under Plot No.393 assigned with holding no.59 as per the record of the current settlement corresponding to plot no.251 and holding no. 24 of village Raximunda as per the record of right of 1936 settlement. The parties are Hindus governed by Mitakshara School of Hindu Law and had a common ancestor. The suit land is claimed to be the ancestral properties. Prior to 1936, there was a partition amongst the plaintiff's grandfather and his brothers. The suit land fell to the share of grandfather of the plaintiff. So, there remained separate note of possession in the Record of Right of 1936 settlement. When the grandfather was thereafter continuing to possess his allotted land, further partition was made between the plaintiff's father and his brother and the suit land came to the hands of plaintiff's father who possessed the same. It is stated that on 20.08.1979 the plaintiff's father sold the suit land along with other land to his son, the plaintiff, by registered sale deed for a consideration of Rs. 4,000/- and delivered possession. There was a mistake in the sale deed with respect to the holding number which was corrected by another deed and affidavit. The recording of the land in the current settlement is said to be incorrect. The defendant no.1 had filed Title Suit No.82 of 1984 in the Court of the Subordinate Judge, Bolangir for declaration of his right, title and interest over the suit land with alterative prayer for partition. The plaintiff was not a party to the said suit and, therefore, it is his case that he is not bound by the said judgment and decree wherein the defendants' right, title and interest over the suit land has been declared.

(3.) Defendant no.1 having died during the suit, defendant no.2 filed the written statement. The challenge is to the effect that the suit land fell to the share of his grandfather Brahmananda Sarangi and not to the share of plaintiff's grandfather-Madan Mohan in the partition. They also denied the subsequent partition between the plaintiff's grandfather and his brother and allotment of the suit land therein as averred by the plaintiff. The plaintiff's father was a party to the suit, i.e., Title Suit No.82 of 1984 and he has not disclosed about any sale to have been made in favour of the plaintiff. So, it is stated that since the plaintiff claims the suit land through his father who was a party to the said suit although the plaintiff was not a necessary party to it, he is bound by the decree.