PARAMANANDA SAHU Vs. BABU SAHU AND ORS.

JUDGEMENT

(1.) THE unsuccessful Plaintiff in partition suit is the Appellant. Plaintiff 's case, in brief, is that one Lochani Sahu left three sons Madhu, Babu and Bhubani Babu was Defendant No. 1 who died during the pendency of this litigation; Defendant No. 2 is his second wife and Defendant No. 3 is his son through her. Bhubani has been impleaded as Defendant No. 7. Madhu left three sons Fagu (Defendant No. 4) Bhagu, deceased father of Defendant Nos. 5 and 6 and Paramananda, the Plaintiff. According to Plaintiff, Defendant No. 1 despairing of begetting any male issue through his first wife Sara, adopted him on the twenty -first day of his birth and brought him up since then as a member of his family. Sometime after the alleged adoption, Defendant No. 1 's first wife having died, he married Defendant No. 2 through whom, besides two daughters, a Bon (Defendant No. 3) was born.

(2.) HE further states that lot Nos. 1 and 2 of Schedule A and lot No. 3 of Schedule B constitute ancestral properties which have not yet been divided in metes and founds, though the different branches are in separate possession of portions for the sake of convenience. Lot Nos. 1 and 2 of Schedule Bare alleged to be joint family acquisitions of Defendant No. 1 's branch, though lot No. 1 has been purchased benami in the name of Defendant No. 2 and Defendant No. 1 has purported to create an invalid gift in her favour in respect of lot No. 2. The movables described in Schedule C are alleged to belong to the joint family of Defendant No. 1 's branch. On these allegations, Plaintiff claims partition in metes and founds and allotment of 1/12th share in the original Schedule A properties and ¼th share in lot DOS. 1 and 2 of Schedule B and the movables described in Schedule C.

(3.) THE Court below, on a consideration of the evidence recorded the following findings and negatived the claim of Plaintiff for partition; (1) Lot Nos. 1 and 2 of Schedule B are Dot Stridhan properties of Defendant No. 2 but constitute acquisitions by Defendant No. 1 out of joint family earnings of his breach; (2) there was a partition in metes and founds among the three sons of Lochani in which the total extent of property consisting of lot Nos. 1 and 2 of Schedule A including lot No. 3 of Schedule B were divided, and in the said partition, Madhu got to his share O. 21 acre described in lot No. 2 of Schedule A, besides O. 003 acre out of the original A schedule property, while each of the Defendant Nos. 1 and 7 got O. 17 acre to their respective shares; (3) Plaintiff has failed to prove his adoption to Defendant No. I and, (4) the movables described in Schedule C are not available for partition.