LALITMOHAN Vs. PRAKASH

JUDGEMENT

(1.) Second Appeal No. 359 of 2017 is filed by Lalitmohan Dattuprasad Mishra and Second Appeal No. 360 of 2017 is filed by his son Subhashchandra taking exception to judgment and decree passed by the Trial Court in Reg. Civil Suit No. 276/1981 dtd. 06/12/2010 and judgment and decree passed in Reg. Civil Appeal No. 23/2011 dtd. 17/03/2017 confirming decree passed in the suit for partition and possession of the properties.

(2.) Plaintiffs are sons of original defendant No.1 Dattuprasad Ambaprasad Mishra. They are begotten from his second wife Sonabai to whom he married after death of his first wife Subhadrabai. Defendant No.2 is son of Subhadrabai. As per the case of the plaintiff defendant No.2 is eldest son of Dattuprasad and after his marriage disputes arose between his wife and wife of defendant No.1 and for this reason they started residing separately. It is further stated that some portion of the suit properties was given to the defendant No.1 for his livelihood without any partition by metes and bounds. It is alleged that by taking advantage of said arrangement defendant No.2 got his name mutated in records in respect of those lands and had sold some portion of the land from survey No. 249/3 to defendant No.3 and survey No. 251 to defendant No.5. Plaintiffs claimed 4/6th shares in the suit properties.

(3.) Defendant No.2 filed written statement contending that there was a family partition between him, defendant No.1 and plaintiffs in the year 1964 and in view of the said partition survey No. 249/3, 260/3, 261/3 and 262/7 came to his share whereas lands survey No. 251, 253, 254 and 255 were allotted to the shares of plaintiffs and defendant No.1. He further contended that on the basis of said partition mutations were sanctioned in respect of those properties. He further averred that plaintiffs and defendant No.1 jointly sold some of the properties. So also defendant No.1 sold the properties in the capacity of being exclusive owner thereof. This fact according to him indicates factum of previous partition. It is further averred that suit is barred by limitation and plea of adverse possession is also raised.