BISHWANATH KEDIA Vs. VIDYASAGAR KEDIA

JUDGEMENT

(1.) This appeal has been filed under Section 96 of the Civil Procedure Code. 1908 against the judgment and decree dated 30.1.2008 passed by 4th Additional District Judge (FTC), Raigarh (CG) in Civil Suit No. 11A/07, whereby suit of the respondent/plaintiff for declaration, partition, separate possession and mesne profits of the suit property has been decreed. The undisputed facts are that appellant Bishwanath Kedia and respondent Vidyasagar Kedia are real brothers and sons of Late Shri Babulal Kedia and Late Smt. Ramabai The original owner of the suit property was Radhakishan Singhania, who was maternal grandfather of the appellant and the respondent. Radhakishan Singhania had, by gift deed dated 2.10.1923, given the suit property to his daughter Smt. Ramabai Kedia, who is mother of the appellant and Vidyasagar kedia. Inlieu of her maintenance with a condition that after the death of Ramabai, the suit property will devolve upon her heirs. It is also not in dispute that Smt. Rama bai died in the year 1941 and after that, when Vidyasagar kedia was about 4-4 1/2 years old that he was given in adoption to his uncle Ramswaroop Kedia sometime in the year 1943. However, rest of the facts are in dispute.

(2.) The case of respondent Vidyasagar Kedia (original plaintiff), in brief, is that he and the appellant herein are real brothers who are sons of Late Babulal Kedia and Late Ramabai Kedia. Late Ramabai Kedia was daughter of Late Radhakishan Singharia, who was the original owner of the suit property. The suit property was given by Radhakishan to his daughter Ramabai by way of gift dead dated 2.10.1923 in lieu of her maintenance with a stipulation that on the death of Ramabai, the suit property will devolve upon her children, Ramabai died in the year 1941, when Vidyasagar kedia was about 2 1/2 -3 years old and as such, on the death of Ramabai in the year 1941, the suit property devolved upon her children i.e. the appellant and respondent Vidyasagar upon her children i.e. the appellant and respondent Vidyasagar Kedia jointly and each of them is entitled to 1/2 share in the suit property. When respondent Vidyasagar was aged about 4-4 1/2 years, he was given in adoption to his uncle (father's elders brother) Ramswaroop kedia. All the suit property was and is still recorded jointly in the name of the appellant and respondent Vidyasagar Kedia. The appellant is the elder brother of Vidyasagar Kedia. Among the property shown in Schedule C annexed to the plaint, a portion of the house and land, area 1210 sq.ft. forming part of plot No. 115, area 10333 sq.ft. was sold on 19.12.1967 by the appellant and respondent Vidyasagar kedia to smt. Champadevi agrawal and the remaining portion of the house and plot area 9123 sq.ft. is recorded jointly in the name of the appellant and respondent Vidyasagar kedia. The house situated at Nuzul Sheet No. 44 Plot No. 126, area 1711 sq.ft. which was inherited by the appellant and respondent Vidyasagar Kedia from their mother Late Smt. Ramabai has been pastitioned between them and they are in possession of their respective shares allotted to them.

(3.) Case of the appellant/defendant, as projected in this written statement, is that respondent Vidyasagar Kedia is residing at Raurkela since 1960-61 and the entire suit property is in exclusive possession of the appellant. Before the death of their mother Ramabai Kedia, respondent Vidasagar Kedia was given in adoption to their uncle Ramswaroop kedia. As such, Vidyasagar kedia has no right, title or interest in the suit property which is the exclusive property of the appellant herein. The appellant had never paid any share in the rent to respondent Vidasagar Kedia. The sale proceeds of the house sold to Smt. Champadevi on 19.12.1967 by the appellant and respondent Vidyasagar kedia was taken away by respondent Vidyasagar Kedia, out of which the property situated at Raurkela was purchased but the same has not been included in the suit for partition, on account of which the suit is not maintainable. The suit property has been undervalued for the purposes of Court fee.