MAHADEI BEWA Vs. KELUNI DEI

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff and defendant No. 2 over a preliminary decree arising out of a suit for partition. The suit property comprises of two plots nos. 72 and 73, measuring 23 acre and. 104 acre respectively in Cuttack town-both contiguous the latter plot being to the east and south of the former. To the west of the two plots lies a lane and to the north of the two plots lies the main road. The two plots Originally belonged to three brothers--Harekrushna, udayanath and Krushna. Defendant no. 1 purchased the l/3rd share of Udayanath in 1934, and purchased the l/6th share of one of the two sons of Harekrushna in 1935. In 1938 the l/6th share of the other son of Harekrushna was purchased by defdt. No. 2, a deity, represented through its marfatdar, then a minor who himself was represented by his mother, the plaintiff. In the same year and shortly after the said purchase, the plaintiff purchased the l/3td share of Krushna. Before harekrushna's sons and brother sold the suit property, they had a thatched house over plot No. 73th plot No. 72 there was a Darchandanadar who was ultimately ejected after purchases by the parties. The Original owners had made no partition of the suit property amongst themselves before they sold their respective shares. Defendant No. 1, after his purchase of 8 annas share in the suit property, which was earlier to the purchase made by the plaintiff and defendant No. 2, occupied the thatched house that stood in plot No. 73, the original owner residing far away. Ho subsequently substantially remodelled the old house and raised some new constructions and also raised a compound wall adjoining the eastern boundary of plot No. 72. After the ejectment of the Darchandanadar from plot no. 72, the plaintiff raised a thatched shed in a portion of that plot. The plaintiff was in possession of. 031 acre, whereas defendant no. 1 was in possession of. 096 acre out of the two suit plots. Defendant No. 2 was not in physical possession of any part of the suit plots at any stage.

(2.) IN the suit for partition, the plaintiff claimed mesne profits from defendant No. 1 being in possession of the old house and of a larger area than what was clue to his share. The trial court disallowed the plaintiff's claim for mesne profits and passed a preliminary decree for partition directing that the two plots would be treated as a compact area, and defendant No. 1's 8 annas share should be allotted in the eastern-most portion, whereas the plaintiffs l/3rd share would be allotted in the western-most portion, and that defendant No. 2's l/6th share would be allotted in between them. Since defendant No. 1 had reoriented the old house, the trial court valued the old house at Rs. 200/- and directed defendant No. 1 to pay the plaintiff and defendant no. 2 their respective shares out of the same. It further directed that in case any of the new constructions mads by defendant No. 1 in plot No, 73 fell to the share of the plaintiff or defendant No. 2, that construction was to be valued and defendant No. 1 was to recover the price thereof from the party, to whose share that construction would fall. It further laid down that in case any single room or similar structure appertained to the share of two persons and the division could not be made without destroying the intrinsic value of the property, the structure or room should be allotted to the party to whose share the major part of it appertains, and the other party should be entitled to be compensated to that extent. It may be noted that during the trial of the suit, the plaintiff's share and the share of defendant No. 2 were sold to a third parson, the deity being represented through the minor marfatdar's natural mother--the plaintiff--in the said, sale, and this purchaser wanted to be substituted as a party for the plaintiff and defendant no. 2. Shortly thereafter, defendant No. 1 purchased the deity's l/6th share from the deity's minor marfatdar's adoptive father, and defendant No. 1 wanted to be substituted for defendant No. 2. The trial court did not allow any of the substitution petitions holding that the rival purchaser of the deity's property raised controversial points which were not necessary for determination within the scope of the suit for partition, and it left the respective purchasers to Agitate their title in a separate suit in respect of the said l/6th share. However, the trial Court apportioned the deity's share in the property in between the plaintiff and defendant no. 2, probably with a view that whoever succeeded to the deity's share in future, might not be inconvenienced by the said arrangement,

(3.) THE first appellate Court took the view that the deity's minor marfatdar's adoptive father was his legal guardian, and as such the sale by him of the deity's l/6th share to defendant no. 1 was prima facie valid, and the rival purchaser, if he had any claim over the deity's property, was to agitate his title in a future suit. So, according to the first appellate Court, defendant No, 1 was entitled to 2/3rds share out of the suit plots and the plaintiff to l/3rd share. Even if defendant No. I was to get 2/3rds share of the suit plot the total area to his share would come to. 0856 acre. The first appellate Court observed, "the area in occupation of defendant no. 1 except the cow-shed and the Bari portion is to be allotted to the share of defendant No. 1 and the remaining portion to the share of the plaintiff. In case, defendant No. 1 is not found entilled to claim the share of defendant No. 2 defendant no. 2 be allotted the share to the continuous West of the share of the defendant No. 1 and defendant No. 1 will pay money compensation to defendant no. 2 for its share and no land be allotted to the shave of defendant No. 2. Out of the excess area of A. O. 11 decimals and odd in possession of defendant No. 1, the plaintiff will be allotted so much land as is practicable out of the cow-shed and buri portion (in possession of defendant No. 1) and in case it cannot be adjusted in full, the plaintiff will be awarded money compensation for the balance. '' Subject to those modifications, the appellate Court otherwise confirmed the decree of the trial court.