The main legal point established is the requirement to prove ancestral joint family property claims and ownership rights, as well as the burden of proof in such cases.

JUDGMENT :

D. Dash, J.

The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed judgment and decree dated 29.01.2011 and 18.02.2011 respectively passed by the learned Adhoc Additional District Judge (FTC), Balangir at Patnagarh in RFA No.116 of 2007.

By the same, the Appeal filed by the present Appellant, being the unsuccessful Plaintiff, under section 96 of the Code has been dismissed and thereby the judgment and decree passed by the learned Civil Judge, Senior Division, Patnagarh in Title Suit No.65 of 2002 dismissing the suit filed by the present Appellant as the Plaintiff against the Respondents arraigning them as the Defendants therein, 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 Trial Court.

3. The Plaintiffs’ case is that one Ganda Sa had three sons, namely, Parameswar, Alekh and Gobardhan. The Plaintiff is the son of Gobardharn. Alekh being alive, has been arraigned as Defendant No.2. The Defendant No.1 is the wife of Alekh and Defendant No.3 is the daughter of Alekh.

It is stated that till the death of Parameswar, all the three brothers were living in joint mess and estate. Parameswar having died, his widow (Defendant No.1) remarried Alekh (Defendant No.2). Gobardhan expressed his intention for partition of the suit holding, which earlier stood recorded in the name of Parameswar alone. It is stated that the suit land is the joint family property of the brothers although recorded in the name of Parameswar alone and all the three brothers, i.e., sons of Ganda were in joint possession and the enjoyment of the same. It is further stated that in the 1976 settlement, the land stood recorded in favour of Alekh (Defendant No.2), Gobardhan and Betikhai (Defendant No.1). In a partition during the year 1970-71 between Gobardhan and Alekh, the suit land extending to Ac.6.18½ decimals in khata no.67 is said to have fallen to Gobardhan’s share and it remained in his possession. Pursuant to the said partition and possession, the Plaintiff in the year 2001 when asked for separate recording of the land in his name, the same was resisted by the Defendants. So, the suit came to be filed.

4. The Defendants 1 and 3, in their written statement, submitted that the suit land never belonged to the joint family consisting of three brothers. They said that it is the self-acquired property of Parameswar, who had separated from his brothers and was in exclusive enjoyment of his properties. After his death, Defendant No.1 succeeded to the said property and possessed the same being the only legal heir and successor of Parameswar. It is stated that taking advantage of the dependency of Defendant No.1, the land has been recorded jointly in the Record of Right of 1976 Settlement. The Plaintiff is thus stated to be having no interest over the said land which had never been partitioned as there was no occasion for the same.

The Defendant No.2, filing the written statement, did not contest the suit and has been set ex parte.

5. On the above rival pleadings, the Trial Court framed as many as six issues. Answering the crucial issues, i.e., issue nos.2 to 4 together as those concern with the nature of property; if the same was partitioned and had fallen to the share of Gobardhan and subsequently the right of the Plaintiff over th same; upon examination of the evidence and their evaluation, the answer has been recorded that the property in the suit is not the ancestral joint family properties of the parties and it is the property of Parameswar alone. It has also been said that there was no partition of the property and that had never fallen to the share of the Plaintiff and he has no right, title and interest over the same for being so declared as has been prayed in the suit.

The Plaintiff, being unsuccessful in the suit, having carried the Appeal, has fail