FAKIR KHAN Vs. KUANR KHAN

JUDGEMENT

(1.) Defendant is the appellant against the final decree in a suit for partition. Defendant is the brother of the plaintiff. Their father deceased Najib Khan was the owner of plot No. 952 Khata No. 1297, touzi No. 2616 situated at Dawan Bazar in the town of Cuttack measuring Ac. O.86 decimals. Admittedly, plaintiff has 1/3rd interest and defendant has 2/3rd interest. Najib Khan died in 1932. The parties were continuing in joint possession, though plaintiff was keeping a different portion and defendant was keeping a different portion. The defendant however got the property mutated in his name in the revenue records. Plaintiff filed an application before the Tahasildar for correction of the same and that was allowed in respect of her 1/3rd share on 17-9-70. On an appeal being carried, the S.D.O. reversed the order dated 17-9-70 of the Tahsildar vide his order dated 16-5-71. Therefore the plaintiff filed the suit claiming 1/3rd interest in the suit properties.

(2.) The defendant took the stand in the written statement that the plaintiff had relinquished her share by taking some money and the defendant had constructed his house with the full knowledge of the plaintiff on the disputed land. It was also averred that the plaintiff was never in possession of the disputed property and the Khasmal authorities granted lease in favour of the defendant after due enquiry and consequently the defendant had become the absolute owner of the property. The learned trial Judge on appreciation of the evidence before him, disbelieved the story of relinquishment of share by the plaintiff as well as receipt of money from the defendant. It was found that there being no registered document relating to relinquishment as required under S.17 of the Registration Act, there had been no proof of such relinquishment. It was also observed that the defendant had no right of preemption. On these findings, a preliminary decree was passed declaring the plaintiff's 1/3rd interest in the suit properties. It was further directed that the portion on which the plaintiff's residential house was situated should be allotted to her. The defendant assailed the judgment and decree in appeal which was registered as First Appeal No. 16 of 1973 but that was dismissed by the High Court on 12-12-76. Thereafter, the plaintiff filed an application for drawing up of the final decree. In course of the final decree proceeding, the original plaintiff having died, her legal heirs were substituted. A Civil Court Commissioner was deputed to effect the partition and the said Civil Court Commissioner submitted his report stating therein that on actual measurement it was found that the defendant had encroached upon Ac. 0.007 decimals of land belonging to the plaintiff and therefore the plaintiff was in actual possession of only A.O. 21 dec. 3 Kadis; whereas the defendant was in possession of Ac. O. 34 dec. 3 Kadis. This report was dated 1-1-80. No objection to the said report having been filed, on perusing the said report, the learned trial Judge accepted the same and made the decree final by order dated 31-3-80. It is against this final decree, the present appeal has been preferred.

(3.) Along with the appeal, an application has been filed in this Court by the appellant purporting to be under Ss. 2 and 3 of the Partition Act with the prayer that the appellant may be permitted to purchase Ac. 0.007 dec. of land on which the wall of the residential building stands.