Bhagabati Mohanty & Others vs Nirod Chandra Mohanty & Others

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 the judgment and decree dated 21st May 2022 and 16th May 2022 respectively passed by the learned Additional District Judge, LR & LTV, Berhampur in R.F.A. No.64 of 2011.

The Appellants as the Plaintiffs had filed the suit for declaration of title and permanent injunction against the Respondents being arraigned as the Defendants in the said suit. The suit having been dismissed; they have carried the Appeal under section-96 of the Code which too has been dismissed.

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.

The Plaintiffs case is that Gopinath Mohanty, Raghunath Mohanty and Binayak Mohanty are the three brothers. Binayak had married to Kautuki and they had no issue. They had executed Will in favour of Golak, who is the husband of Plaintiff No.1 and father of other Plaintiffs. Gopinath had married to Hira Mohanty and from that wedlock two sons namely, Golak Mohanty and Mangulu Mohanty were born. The Plaintiffs are the legal heirs and successors of Mangulu. It is stated that Defendant No.1 is the sole successors of late Raghunath. Hira Mohanty, out of self-acquired property had settled the land under two plots i.e. Plot No.145 and 149 in favour of her eldest son Mangulu and the suit plots bearing number 678 and 526 were settled in favour of younger son Golak. The settlement made by Hira was oral and it was as per her pre-will and volution. Mangulu and Golak were enjoying their respective allotted lands. The Plaintiffs being the legal heirs and successors of Mangulu came to enjoy the property, after the death of Mangulu as the absolute owners of the same. When the matter stood thus, the Defendant no.1 who has no connection with the branch of Hira and Gopinath colluded with other Defendants and he then attempted to disturb the possession of the Plaintiffs suit land referring to an erroneous entry made in the record of right published in the Consolidation Operation. So, the Plaintiffs was compelled to file the suit.

The Defendant Nos.1 & 2 in their separate written statements while traversing the plaint averments submitted that their predecessors, Binayak and Koutuki had no issue and for that reason they had taken Golak as son for all purposes and executing the Will, they have bequeathed the property in favour of Golak. It is further stated that Sitaram, the Defendant No.1 is the son of Raghunath Mohanty begotten through her mother Hira. When Raghunath expired, Hira Mohanty married her brother-in-law, Gopinath brother of Raghunath and from that wedlock, Mangulu and Golakha were born. Plaintiffs are the successors in interest of Golak whereas Defendant Nos.2 to 7 are the successors-in- interest of Mangulu. It is, therefore, stated that Defendant No.1 being the natural son of Hira Mohanty, his name has very rightly noted in the Consolidation Record of Right. They once pleaded that the land under Plot Nos.675 and 526 were given to Golak as per the oral direction of Hira; whereas the land under Plot No.145 and 149 were given to Mangulu but later on they have pleaded that the Plaintiffs have no right, title and interest over the suit land.

The Trial Court with the above rival pleadings framed as many as six (6) issues. Coming to answer issued nos.4 and 5 which concern with the claim of the Plaintiffs to the relief of decree of declaration that the Defendants are having no manner of right, title, interest and possession over the suit land as also their entitlement for decree of permanent injunction; the Trial Court on discussions of evidence and their examination has arrived at the following conclusion: -

“It is the admitted case of all concerned that suit plots originally belong to Hira Mohanty and that Hira and her husband Gopinath Mohanty are dead and that Hira Mohanty had three sons namely, Mangulu, Sitaram and Golak. The parties to the suit are Hira’s son Sitaram Mohanty and the representative-in-interest of sons Mangulu and Golak but none of them could provide any satisfactory evidence to establish the fact that either the suit land or any portion of it was exclusively allotted in favour of them or in favour of their respective predecessor by the original owner Hira Mohanty. In view of such finding, this Court inclined to hold that the suit property belongs to the plaintiffs who are the successors-in-interest of Golak and Sitaram (defendant No.1) and the defendant No.2 to defendant No.7 who are the successors-in-interest of Mangulu. In view of this, the exclusive right, title and interest of the Plaintiff over the suit plot cannot be declared.

Since the defendants have also been found to have interest over the suit property along with plaintiffs, they cannot be restrained from the suit property by way of grant injunction against them. Thus issue No.4 and 5 are answered against the plaintiffs.”

With above findings, the suit has been dismissed. The Plaintiffs having carried the First Appeal have been unsuccessful.

Mr. S.K. Pradhan, learned Counsel for the Appellants submitted that the Plaintiffs being the members of the branch of Gopinath to whom Hira Mohanty married after death of her first husband, Raghunath, Sitaram, the original Defendant No.1 could not have succeeded to the properties of Hira. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law.

Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them.

It is seen that in the property which is the subject matter of the suit belonged to Hira. Admittedly, Mangulu, Golak and Sitaram are the three sons of Hira.

It be stated at this stage that a son is a son to the mother notwithstanding through whom he is born. The property thus being the absolute property of Hira, the same is to be succeeded by her three sons which in turn would stand succeeded by their legal heirs and successors.

In that view of the matter, the submissions of the learned Counsel for the Appellant, cannot be countenanced with to say that there arises any substantial question of law for being answered, meriting admission of this Appeal.

In the result, the Appeal stands dismissed. However, there shall be no order as to cost.

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