BALADEV PRASAD MOHANTY Vs. PURNA CHANDRA MOHANTY

JUDGEMENT

(1.) DEFENDANT is the appellant against a confirming decision.

(2.) THE undisputed facts and circumstances giving rise to the present appeal are as follows : The suit for partition was filed by plaintiff respondents in respect of Ac. 0.917 decimals of land, as described in the plaint Schedule. The disputed property was the joint family property of two brothers Balamukund Mohanty and Ghanashyam Mohanty. Plaintiffs 1, 2, and 3 are sons of late Balamukunda Mohanty; plaintiff No. 4 and the sole defendant are the sons of late Ghanashyam Mohanty. A preliminary decree for partition was passed declaring half share of plaintiffs 1, 2 and 3 and l/4th share each of plaintiff No. 4 and the defendant. Subsequently, in final decree proceeding, the western 1/4th portion of the disputed property (area of Ac. 0.22.91/4 decimals) fell to the share of the defendant. The report of the Commissioner dividing the property was accepted by order dated 6.7.1981. Thereafter, the plaintiffs filed a petition purporting to be one Under Section 4 of the Partition Act seeking to purchase the portion of the property which had fallen to the share of the defendant on the ground that the defendant had objected to the Commissioner's report that it would not be convenient or suitable to stay in the portion allotted to the defendant. Objection was filed by the defendant stating that he had no other place to stay and he was not willing to sell the share. On the other hand, the defendant in his objection offered to purchase the 3/4th shares of the plaintiffs. The trial Court by order dated 19.8.1981 allowed the application of the plaintiffs and directed that the l/4th share of the defendant shall be sold to the plaintiffs for consideration of Rs. 2,100/ . In appeal by the present appellant, the appellate Court held that the impugned order of the trial Court being not an order Under Sections 2 and 3. or 4 of the Partition Act was not appealable as decree as contemplated Under Section 8 of the Partition Act. It was further observed that even assuming that appeal was maintainable, the order passed by the trial Court should not be interfered with.

(3.) IT is apparent that the plaintiffs wanted to buy out the share of the sole defendant in accordance with Section 3 of the Partition Act. Section 3 is inter related to Section 2 of the Partition Act. For convenience, the provisions contained in Sections 2 and 3 of the Partition Act are extracted hereunder :