The main legal point established in the judgment is the necessity of setting aside a registered partition deed for a suit to be maintainable, the inadmissibility of an unregistered partition deed as evidence of specific property allotment, and the impact of the Orissa Land Reforms Act on the partition.

JUDGMENT :

A.K. Rath, J.

This is plaintiff’s appeal against a confirming judgment in a suit for declaration of right, title and interest, confirmation of possession and permanent injunction.

2. The appellant as plaintiff instituted a suit impleading respondents as defendants. The dispute pertains to a tank appertaining to C.S. Khata No.126, Plot No.642 Ac.1.28 dec. corresponding to M.S. Khata No.287, Plot No.731 Ac.1.10 dec. The case of the plaintiff is that one Bhagirathi was the common ancestor of the parties. He had two sons, namely, Shyam and Biswanath. Biswanath married twice. Plaintiff is the son of Biswanath through his first wife. Paruli, defendant no.2, is the second wife of Biswanath. Defendant nos.3 and 7 are the son and daughter of Biswanath through Paruli. In order to avoid rigors of Orissa Land Reforms Act, Biswanath and Shyam partitioned the properties by means of a registered partition deed dated 13.10.1953. But then they were in joint enjoyment of the properties. They used to alienate the property jointly, which indicates that the partition deed of the year 1953 had not been acted upon. The further claim of the plaintiff is that after his father married for the second time, the member of the family felt difficulty to stay jointly. Pursuant to the advice of the well-wishers, the properties were divided on 5.10.1968. Accordingly, unregistered plain paper document (panchayat patra) was executed between the parties. In the said panchayat patra, the entire suit tank was allotted to the share of the plaintiff.

3. Defendant no.1 filed a written statement denying the assertions made in the plaint. It is pleaded that the plaintiff was managing the affairs of the family and looking after the litigation. Shyam put LTI and signatures on the blank papers on good faith so as to use in the court. Taking advantage of the same, the plaintiff might have created a Panchayat Patra. Shyam and Biswanath sold properties and executed deed of relinquishment. Without any prayer of cancellation of the partition deed dated 13.10.1953, the suit is not maintainable.

4. On the inter se pleadings of the parties, learned trial court has framed eight issues. Both the parties led evidence, oral and documentary, in support of their cases. On a threadbare analysis of the evidence as well as pleadings, learned trial court came to hold that the partition deed dated 13.10.1953 had been acted upon. The parties are the owners and enjoyment of their properties as per their share. The so-called Panchayat Faisala Patra dated 5.10.1968 vide Ext.1 being nullity, the plaintiff acquires no right, title and interest over the suit tank. The partition deed dated 13.10.1953 is valid and binding on the parties. Unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Ad hoc Addl. District Judge, Balasore, which was eventually dismissed. It is apt to state here that during pendency of the second appeal, appellant no.1 died, whereafter his legal representatives have been brought on record.

5. The second appeal was admitted on the following substantial question of law enumerated in Ground Nos. B, C & F. The same are:

“B. Whether the learned courts below have justified to ignore the evidentiary value of Ext.1 for want of registration?

C. Whether the findings of the learned courts below that in absence of the deed of cancellation of Ext. A the subsequent Panchayat Phaisala vide Ext.1 is not valid in the eye of law?

F. Whether the learned courts below have justified in not considering Ext.1 even for collateral purposes assuming the same is compulsorily registerable ?”

6. Heard Mr. S.K. Samantaray, learned counsel for the appellants and Mr. B.H. Mohanty, learned Senior Advocate for the respondents.

7. Mr. S.K. Samantaray, learned counsel for the appellants, submitted that all the joint family properties are not the subject-matter of partition as per partition deed dated 13.10.1953, Ext.A. The partition took place in the year 1968. Bot