Decided on September 26,1996

Hrishikesh Panda And Ors. Appellant
Ram Narayan Panda And Ors. Respondents


Basudev Panigrahi, J. - (1.)The unsuccessful plaintiffs are in appeal against the Judgment and Decree passed by the learned Additional District Judge, 3rd Court, Midnapore in T.A. No. 190/73 dated 29 -8 -74 and 6 -9 -74 respectively affirming the judgment and decree passed by the learned Munsif, Additional Court, Contai in T.S. No. 10/73 dated 12th April, 1973 and 30th April. 1973 dismissing their suits. Plaintiffs filed the suit for declaration of their title over 'ka' schedule lands and for permanent injunction restraining the defendants from disturbing their peaceful possession.
(2.)The skeletal picture of the case of both parties is as follows :
That the ancestors of plaintiffs originally were the residents of village Tulsichara in the District of Puri within the province of Orissa. They came to reside in the suit village in or around 200 years ago which was then within Orissa province. But in course of time, the village was disannexed from the Orissa State; amalgamated with the Bengal province. Notwithstanding such amalgamation of the area with the province of Bengal, they followed rites and ceremony under Mitakshara Law. The defendant No. 1 was the father of the plaintiff No. 1 and proforma defendant No. 4. The defendant No. 4 expressed his inclination to marry for the second time even during the presence of his first wife, sons and daughter. Therefore, there was a family disension and ill feeling between the members which led to reference to the local gentlemen to subside their misunderstanding. The parties divided amicably their properties and in evidence of such partition, they prepared a 'Talika -Phardas' or 'Partition List' on 24th Magh, 1358 and accordingly, the plaintiffs got the 'ka' schedule lands towards their share. Thus, it is claimed that they have been in exclusive possession and enjoyment of the lands mentioned in 'ka' schedule and have been paying rents to the State therefore. When the Tahsilder had mischievously claimed the suit lands to have vested in the State Government, the plaintiffs were obliged to file a title Suit No. 261/65. But it was, subsequently, withdrawn with the liberty to file a fresh suit on the self -same cause of action. Thereupon the plaintiffs have again filed the instant suit after due service of notice to the Collector, Midnapore and Collector. 24 -Parganas representing the State of West Bengal under Sec. 80 of the C.P.C.

(3.)The State of West Bengal, the defendant nos. 2 and 3 have, inter alia, denied that there was any partition, muchless, a list showing allotment of shares to the different members of the family of the plaintiffs. The defendants also disputed about the governance of the plaintiffs under the provisions of Mitakshara Law. It is the specific stand of the State that since the defendant No. 1 was a big landlord, intermediary consequent upon vesting, whatever rights he had, those have vested in the State free from all encumbrance. Accordingly, the record of right was prepared in his name showing fresh settlement. The alleged Talika -Phardas' or 'Partition List' is said to be an ante -dated, fabricated and manufactured one subsequently to suit the purpose of the plaintiffs.

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