BRAJAMOHAN DAS Vs. RADHAMOHAN DAS

JUDGEMENT

(1.) THE plaintiffs have brought this appeal against the judgment and decree passed by the learned Subordinate Judge of Mayurbhanj, arising out of a suit for partition in respect of -/5/4 pies interest of the plaintiffs. One Raghunath Das had four sons, Radhamohan, Suryamani, Brajmohan and Madanmohan. Plaintiff No. 1 is Brajamohan, the third son. Plaintiffs Nos. 2 and 3 are the two sons of plaintiff No. 1. Defendant No. 1 is the eldest son of Raghunath. Defendant No. 5 is the last son of Raghunath, i.e. Madanmohan. Defendants Nos. 2 to 5 are the four sons of defendant No. 1, Radhamohan. Defendant No. 7 is the widow of Suryamani who died in the year 1931. THE 'A' Schedule properties admittedly are the ancestral properties which are nearly 100 mans, i.e. 62 acres. THE properties described in schedule (B) according to the plaintiffs' version were acquired from out of the joint family funds, they being in acreage nearly 100 acres. Schedule 'D' describes the moveables and schedule 'E' to the plaint describes the Mahajani business of the joint family as asserted by the plaintiffs. Plaintiffs seek a partition on the ground that even though a few years prior to the institution of the suit there was a quarrel amongst the female members of the family on account of which parties separately possessed their lands there having been no partition by metes and bounds, the present suit has been brought for partition by metes and bounds, and for separate possession in respect of one-third share of the plaintiffs. THE short defence is that the suit for partition is not maintainable as there was already a partition by metes and bounds in the year 1947 and the further defence is that the properties described in schedule 'B' being owned as self-acquisition of the defendant No. 1 the plaintiffs are not entitled to any share in respect thereof. THE description of moveables and mahajani business, as given in schs. 'D' and 'E' was also disputed in the written statement.

(2.) THE trial court found that there was a partition by metes and bounds in the year 1947 and, as such, the present suit is not maintainable. It is further found that the properties in dispute in Schedule 'B' are the self-acquisitions of defendant No. 1; in any event the plaintiffs are not entitled to any share in respect of the same. It is these two issues which are being contested before us in appeal.