MATHURI SAHU Vs. SRIDHAR PANDA AND ORS.

JUDGEMENT

(1.) DEFENDANT No. 2 is in appeal against the affirming decree of the learned Subordinate Judge of Balasore in a suit for partition.

(2.) PLAINTIFFS came to Court asking for partition of the one -fourth share purchased by them on 30th of March, 1953 under Ext. 3. Krushnakanta in his turn had purchased the property from Pohala Dei, a member of the family, on 18 -1 -1939 under Ext. 2. Defendant No. 2, a member of the original alienor's family entered contest and maintained that Pohala had no right of alienating specific property as there had been no partition and in view of the admitted case of the Plaintiffs that Pohala bad a moiety share in the property, the alienating could be valid only to the half share. He also maintained that the disputed property was ancestral homestead and as such he was entitled to buy out the Plaintiffs, stranger purchasers, under Section 4 of the Partition Act. The question of half share is with reference to plot No. 1041 having a total area of 5 decimals. It may be pointed out that the rest of the property sold was agricultural land. Defendant No. 2 maintained that the Plaintiffs had clearly admitted in the plaint that the second Defendant had half share therein. In that view of the matter, the Plaintiffs had become co -sharers on the basis of purchase from Defendant's co -owner. There was no plea of ouster and, therefore, even if the purchasers and before them their vendors were in exclusive possession, no title could accrue as a result of such possession. Plaintiffs, therefore, were entitled to only half of the homestead and at the time of partition, the second Defendant was entitled to the other half out of plot No. 1041.

(3.) COMING to the other contention, namely, application of Section 4 of the Partition Act, I do not think, Mr. Kar should succeed. The Plaintiffs entered Into the property as early as 1953 and had been in possession ever since then. Defendant No. 2 tolerated the Plaintiffs as co -owners in possession for seventeen years prior to the suit. Such long possession and enjoyment by stranger -transferees who had become co -owners disentitles any original member of the family to exercise the right under Section 4 of the Partition Act. Though Mr. Kar was very vehement on the first occasion at an adjourned date of hearing, he himself fairly stated that judicial view was against him and, therefore, did not press the point.