KANDURI MAHARANA Vs. BANCHHU MAHARANA

JUDGEMENT

(1.) THE plaintiff is the appellant, in this second appeal, from a decision of the learned District Judge of Cuttack, whereby he dismissed the plaintiff's appeal from a decision of the learned Munsif of Cuttack, and held that the plaintiff is not entitled to any relief under Sec. 4 of the Partition Act (Act IV of 1893) on the facts and in the circumstances hereinafter stated.

(2.) THE suit property relates to one residential Gharbari plot in which the plaintiff and his brother the defendant No. 4 have jointly eight annas share and the defendant No. 1 had the remaining eight annas share therein, which ultimately was sold to the defendants Nos. 2 and 3 as hereinafter stated. A geneological table showing the relationship of the parties, - other than defendants 2 and 8, who are outsiders - is set out as follows : THE plaintiff's case, shortly stated, is this : THEre was no partition of the family by metes and bounds; there was, however, severance of the joint family being separate only in mess and residence; the plaintiff and his brother, for convenience have been living on the western part of the Gharbari plot and defendant No. 1, the other co-sharer residing on the eastern portion of the plot. THE facts leading to the present litigation are these : In 1928 defendant No. 1 executed a registered mortgage bond in respect of his undivided eight annas share in favour of one Nidhi Swain; the said Nidhi Swain enforced the mortgage by filing a suit for sale, and in 1946 he purchased the said undivided share of defendant No. 1 in the suit property in execution of a mortgage decree in Execution Case No. 128 of 1956; on September 19, 1947 the said Nidhi Swain took formal delivery of possession (Ex. A sale certificate), on March 5, 1948, Nidhi sold the said undivided eight annas share by a registered sale deed (Ext. 1) to defendants 2 and 3. On June 23, 1954 the plaintiff filed this suit for partition and also for relief to buy up the share of defendants 2 and 3 on a reasonable valuation in his right of pre-emption under Sec. 4 of the Partition Act. In the suit his brother Panu Maharana was made a party as pro forma defendant No. 4. THE defence taken in the suit, was that there was a partition by metes and bounds 25 years ago and that Sec. 4 of the Partition Act had no application to this case.