ANADI NAIK Vs. PRAHALLAD NAIK

JUDGEMENT

(1.) Plaintiff is the appellant against a reversing judgment in a suit for partition of his one-third share in the homestead left by one Chakradhar Naik in holding No. 313 measuring about AC. 0.061/2 dec. and for delivery of possession of the same. The admitted genealogy is given below.

(2.) From the genealogy stated below, it would appear that Madhab had four sons, namely, Sridhar, Giridhari, Gopi and Nidhi. Nidhi's son Chakradhar is unheard of for more than seven years. The dispute is in respect of his share in the properties. Plaintiff is the son of Sridhar, Giridhari's son is defendant No. 5 Gopi's son Jaiga was original defendant No. 1 and after his death defendants Nos. 1, 1 (ka) and 1 (kha) represent his line.

(3.) Plaintiff's case is that in 1923 there was a partition between the four sons of Madhab. The suit plots (Plots Nos. 1111 and 1167) came to the share of Gopi and Nidhi. During the current settlement the suit land was recorded jointly in the names of Bhaiga, Jaiga (original defendant No. 1), Fagu and Chakradhar. There was mutual partition between the heirs of Gopi and Nidhi in which western portion of the suit land was possessed by Chakradhar and eastern portion was possessed by heirs of Gopi. Since more than seven years Chakradhar is unheard of and hence he is presumed to be dead. After statutory death of Chakradhar, the plaintiff is entitled to get one-third share in the homestead of Chakradhar. Defendants Nos. 1 to 4 have sold Ac. 0.05 decimals out of the disputed land to defendants Nos. 6 to 8 which is in excess of their share. Hence the suit. Defendants Nos. 2 to 4 and 6 to 8 filed a joint written statement. Their case is that since long Sridhar and Giridhari were separate and there was no partition between Gopi and Nidhi. Chakradhar is not unheard of since more than seven years. Plaintiff and defendant No. 5 were never in possession of the suit land. Defendants have acquired title by adverse possession.