Back
IN THE HIGH COURT OF ORISSA AT CUTTACK
D. Dash, J.
Budhuram Majhi & Another - Appellants
Versus
Jhana Majhi (Since Dead) and Others – Respondents
SA No.92 of 1997
Decided On : 20-06-2022
Adverse Possession - Property Dispute - Code of Civil Procedure, Section 100 - Hindu Succession Act - [Section- 100 of the Code] - [Summary of Acts and Sections: Code of Civil Procedure, Section 100; Hindu Succession Act] - The court discussed the issue of adverse possession and the entitlement of the parties under the Hindu Succession Act. The court also highlighted the application of the Code of Civil Procedure, Section 100 in addressing the substantial questions of law raised by the appellants.
Fact of the Case:
The case involved a property dispute among the legal representatives of the parties. The plaintiff claimed a share in the properties of the common ancestor, while the defendants contested the claim based on adverse possession and expenses incurred by them.
Finding of the Court:
The court found that the defendants' claim of adverse possession was not substantiated as there was no specific plea of ouster, and the possession of one co-owner was deemed to be on behalf of all co-owners. The court also noted that the Hindu Succession Act did not apply to the parties as they were members of the Scheduled Tribe Community.
Issues: The issues included the entitlement of the parties to the property, the claim of adverse possession, and the application of the Hindu Succession Act.
Ratio Decidendi: The court held that the defendants' claim of adverse possession was not valid due to the absence of specific plea of ouster, and the possession of one co-owner was deemed to be on behalf of all co-owners. The court also noted that the Hindu Succession Act did not apply to the parties as they were members of the Scheduled Tribe Community.
Final Decision: The appeal was disposed of with no order as to cost, and the Trial Court was given liberty to re-workout the shares of the parties in accordance with the old Hindu Law.
JUDGMENT :
The Appellants, by filing this Appeal under Section- 100 of the Code of Civil Procedure (for short, ‘the Code’) have assailed the judgment and preliminary decree dated 04.01.1997 and 18.01.1997 respectively passed by the learned District Judge, Mayurbhanj, Baripada in Title Appeal No.21 of 1990.
By the same, the Appeal filed by the present Appellant No.1 (legal representative of the Defendant No.1, who had been substituted as the Appellant No.1 and the Appellant No.2 (Defendant No.2) under Section-96 of the Code in challenging the judgment and preliminary decree dated 08.12.1989 and 20.12.1989 respectively passed by the learned Civil Judge, Senior Division, Baripada in T.S. No.44 of 1987, has been dismissed. Thereby, the judgment and preliminary decree passed by the Trial Court holding the entitlement of Respondent No.1, namely, Jhana Majhiani, wife of Kamalakanta Majhi (original Plaintiff) to 1/3rd share; the entitlement to 1/3rd share and Defendant No.2 and 2(A) having the entitlement to rest 1/3rd share over Schedule-B and D properties have been confirmed.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.
3. The Plaintiff’s case is that one Ratan Majhi was the common ancestor of the parties and he had two sons, namely, Bada Durga and Nimai. Said Nimai died unmarried. The Plaintiff, Defendant No.1 and one Salama are the three daughters of said Bada Durga. Salama is survived by Defendant No.2 and 2(A).
It may be stated here that the Original Plaintiff having died during pendency of this Second Appeal, her legal representatives, have come on record.
Defendant No.1 having died during pendency of the First appeal filed by her, has been substituted by her son and daughter, who pursued the First Appeal and have finally lost and this present Second Appeal has been filed by them.
It is stated that Bada Durga had two houses as shown in Schedule-D of the plaint and Plaintiff has 1/3rd share over those houses. It is stated that Defendant No.1 in a surreptitious manner had got her father’s land recorded in her name. The Plaintiff, therefore, claims 1/3rd share over all those properties. The Defendant No.1 since dead, the predecessors-ininterest of these Appellants, who have come to be substituted in her place, have taken a stand that after the death of her father, she got her two sisters married and all such expenses for the purpose had been borne by her and her husband. It is also stated that her husband was kept by her father as illatom-son-in-law and, therefore, the Plaintiff and the Defendant No.2 and 2(A) are not entitled to any share over the properties, which entirely is her legitimate entitlement.
4. The Defendant no.1 has filed the written statement and she has taken a specific stand that after the death of her father, she got her two sisters married. Her husband was taken by her father as domesticated son-in-law.
Defendant No.2 and 2(A) have also filed their written statement in the same line supporting the case of the Plaintiff.
5. The Trial Court, faced with the above rival pleadings, having framed four issues, has finally decreed the suit in favour of the Plaintiff; in further directing that the properties given in Schedule-B & D of the plaint are divisible into three parts out of which the Plaintiff is entitled for 1/3rd share, Defendant No.1 is entitled for 1/3rd share and Defendant No.2 and 2(A) are entitled for 1/3rd share and the parties are directed to get their shares by carving out the by a Civil Court Commissioner.
6. The present Appeal has been admitted on the following substantials question of law as stated in paragraphs 2 and 3 of the Memorandum of Appeal:-
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
