BHAGABAN PANDA Vs. DULLAV PANDA

JUDGEMENT

(1.) The unsuccessful defendants 1 and 2 have preferred this appeal against the judgment and decree dated 31-7-1976 and 7-8-1976 respectively passed by the learned Subordinate Judge, Keonjhar, in Title Suit No.17 of 1975 on his file, preliminarily decreeing the plaintiffs' suit for partition.

(2.) The relationship between the parties is shown in the following genealogical table : From the table it is seen that the plaintiff No. 1 Dullav (present respondent No. 1), plaintiff No. 2 Sanatan (present respondent No. 2) and Ballav (the father of defendant No. 1 Bhagaban - appellant No. 1 and grand-father of defendant No. 2 Ratnakar appellant No. 2) are brothers. Defendant No. 3 (present respondent No. 3) purchased Ac.O. 46 decimals of land from plaintiff No. 2 under the registered sale deed Ext. 4 dated 25-9-1974.

(3.) The plaintiffs case, briefly stated is as follows : The plaint 'Ka' and 'Kha' schedule lands are lands received as gift and they stand recorded in the name of Brajamohan Panda. The plaint 'Ga' and 'Gha' schedule lands are the raiyati lands of the said Brajamohan. All the above referred lands were the lands of the joint family comprising of Brajamohan and his three sons, plaintiff No. 1, plaintiff No. 2 and defendant No. 1's father. Defendant No. 2 is the son of defendant No. 1. The parties had their ancestral dwelling house at Jyotipur. During the minority of the plaintiffs, their father Brajamohan died and after his death, defendant No. 1's father Ballav acted as the Karta of the joint family. The lands of the joint family as given in the plaint schedules are situated at villages Adipur, Sadangi, Bhimapur, Kenduapada and Bada Amuni. In pursuance of an amicable arrangement among the three brothers for the sake of conveniently possessing and enjoying the joint family lands, as suggested by the eldest brother Ballav, plaintiff No. 1 stayed at Jyotipur and cultivated the lands of Adipur and Sadangi, while plaintiff No: 2 looked after the cultivation of the lands at Bhimapur, and Ballav himself was in charge of the cultivation of the lands in village Bada Amuni and so far as the lands in village Kenduapada are concerned, all the three brothers looked after them as they were tenanted lands. After some years the plaintiffs started demanding of their elder brother Ballav for partitioning of the plaint schedule properties, but he evaded it on some protext or other. In the meanwhile the gift lands of village Bada Amuni (schedule 'Kha/1'lands) vested in the State Government under the Orissa Estates Abolition Act. In spite of the objection raised by the plaintiffs, defendant No. 1 got his name solely recorded in respect of the plaintiff 'Kha/1' schedule lands of Bada Amuni. Hence the plaintiffs were compelled to file the present suit praying for a partition of the plaint schedule properties, including 'Kha/ 1' schedule lands, into three equal shares.