Mutation of property in revenue record does not determine title. Excess alienation by co-owner deemed void.

JUDGMENT :

A.K. RATH, J.

1. Plaintiff is the appellant against a confirming judgment in a suit for partition.

2. Case of the plaintiff was that he and defendant no.1 are brothers. There was a partition of the ancestral properties between them. Subsequently they jointly acquired the suit land from one Sitaram Agrawalla in the year 1961 by means of a registered sale deed and took delivery of possession. As per mutual understanding and convenience, he was in possession of southern half of the suit land, whereas defendant no.1 was in possession of northern portion of the suit land. Since there was no complete partition by metes and bounds between them, the suit land was recorded jointly in their names in the major settlement. Defendant no.1 transferred the entire suit land in favour of defendant no.2. The plaintiff asked defendant no.2 to make partition of the suit land. But then, defendant no.2 claimed the entire suit land. He has half share over the suit land.

3. Defendant no.2 filed a written statement along with counter claim. Case of the defendant no.2 was that there was partition of the properties between defendant no.1 and the plaintiff. The suit land fell to the share of defendant no.1. The plaintiff did not raise any objection in the mutation case. The suit land was mutated in the name of the defendant no.1. Thereafter, defendant no.1 transferred the suit land in favour of defendant no.2 by means of a registered sale deed dated 13.9.1988 and delivered possession. He has acquired title and possession over the suit land. Defendant no.1 was set ex parte.

4. On the inter se pleadings of the parties, learned trial court has framed seven issues. Parties led evidence, oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that the suit land had been acquired jointly by the plaintiff and defendant no.1. There is a complete partition in respect of ancestral properties as well as self-acquired properties. Defendant no.2 is entitled to a decree of permanent injunction. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Padampur in Title Appeal No.5 of 1993, which was eventually dismissed.

5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, B and C of the appeal memo. The same are

“(A) Whether the learned courts below should have granted a decree for partition in respect of the admitted three areas of land ?

B. Whether the learned courts below were correct in relying on the mutation recores (Ext.C) in the absence of any proof of exclusive acquition and in view of the error of record as pointed above ?

C. Whether the learned courts below were correct in making out a third case of allotment of suit property (3 acres) to defendant-respondent no.1 when, this has neither been pleaded nor has been proved by any of the party?”

6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Ms. Sumitra Mohanty, learned counsel for the appellant and Mr. S.K. Pattnaik, learned Senior Advocate along with Mr. P.K. Pattnaik, learned counsel for the respondent no.2.

7. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the plaintiff and defendant no.1 are brothers. The ancestral properties of the parties had been partitioned. Thereafter, the plaintiff and defendant no.1 purchased the suit land in the year 1961. The same had been recorded jointly. Defendant no.2 prevailed upon the defendant no.1 and obtained the sale deed in respect of the suit schedule land. The plaintiff has half interest over the same. He further contended that learned trial court came to an erroneous conclusion that the suit land has been partitioned between the parties. The finding of the learned trial court that the plaintiff did not object to the exclusive recording of the suit land in favour of defendant no.1 is an error on record. In mutation case, the plaintiff filed objection. His alternative submission