ALEKHA SUBUDHI Vs. DAMODAR DALEI

JUDGEMENT

(1.) CORRECTNESS of a reversing judgment in a suit for partition is assailed by the plaintiff -appellant.

(2.) STATED in brief, the respective cases of the parties are as follows : Plaintiff filed the sort for partition of 11 decimals of land, including 5 decimals of homestead land, claiming half share in the suit properties and prayed for appointment of a Civil Cout Commissioner to effect partition. According to him, the suit properties stood recorded in the names of the plaintiff and Site Jaganth Dalei, father of the defendants in the settlement records they were possessing the land amicably having, equal share without any partition by metes and bounds and were paying, rent jointly; after death of Jagannath defendants 1 to 5 threatened to occupy a portion of the suit land forcibly which is under the possession of the plaintiff taking advantage of the fact that there was no partition and therefore, filing of the suit was necessitated. According to the defendants, during the life -time of their father, who died in the year 1945, the suit properties were partitioned by metes and bounds, and each of them was possessing, his respective share; in the year 1938 plaintiff being in need of money sold 1 1/2 decimals of land from northern side to their father for a sum of Rs. 45/ - and delivared possession and they were possessing the same, and in the settlement proceeding their names have also been recorded separately. Their further stand is that they, being in possession of 1 1/2 decimals of land of the plaintiff for more than 12 years, they have perfected their title and interest by way of adverse possession.

(3.) THE trial Court, on consideration of the evidence, came to hold that the defendants failed to prove their case of sale, adverse possession and claim of previous partition. It accordingly - decreed the suit declaring that the plaintiff on one hand and defendants 1 to 4 jointly on the other were respectively entitled to halt share each of the above suit property. The parties were directed to amicably partition the suit home - stead within three months and in case there was no amicable partition the plaintiff was to apply to the Court for partition through a Civil Court amin commissioner. Defendants 1 to 5 assailed the correctness of the judgment before the District Judge, Cuttack, who while accepting the findings relating to non -sale, reversed the findings so far as they related to the claim of adverse possession. The suit was accordingly dismissed,