RAJKISHORE MISRA Vs. BHIKARI MISRA

JUDGEMENT

(1.) Defendant No. 1 has appealed against a reversing judgment in a suit for declaration of title and confirmation of possession in respect of A. 0.12 decimals of land appertaining to Plot No. 1387 of Khata No. 159 in Mauza Bira-Pratappur, District Puri, consisting of house site with garden.

(2.) The case of the plaintiff is that defendant No. 2 purchased the suit property by Ext. 1 dated 17-8-1925 from one Govinda Jena. Defendant No. 2 was in exclusive possession of the property and sold the same to the plaintiff under Ext. 6 dated 17-3-1972. After purchase, the plaintiff became the owner of the suit land and possessed the same. As obstruction was created by defendant No. 1 in the 'enjoyment of the suit property, the suit was filed. 2. Defendant No. 1 in his written statement has contended that the disputed property is the joint family property of defendants Nos. 1 and 2. In the family partition, the suit property fell to the share of defendant No. 1. The suit property was also purchased on be-half of the joint family and the consideration was paid out of the joint family funds.

(3.) The trial court held that the document of partition Ext. A relied upon by defendant No. 1 is a memorandum of partition which has been acted upon and the suit property fell to the share of defendant No. 1 in the said partition. Defendant No. 1 had not taken possession of the suit property and he had not been in possession of the same and that the suit property was the joint family property. Plaintiff by his purchase under the sale deed Ext. 6 has not taken possession of the suit property and has also never been in possession of the same. The first appellate court has held that Ext. A is a deed of partition and is not admissible in evidence for the purpose of partition, but for collateral purposes it is admissible to show that there was disruption of joint status. It was further held that the property in question was the joint 'family property, acquired in the name of defendant No. 1. As the property is the joint family property, the plaintiff, by sale deed Ext. 6, has acquired the undivided half interest of defendant No. 2 and he has also been in joint possession of the same along with defendant No. 1