BHIKARI CHARAN NAIK Vs. BHABA BEWA

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant against a reversing judgment.

(2.) PLAINTIFF-RESPONDENT No. 1 filed the suit for partition of the suit lands described in the plaint Schedule and allotment of 13/48th share to him. besides partition of the house standing on plot No. 1383 and allotment of half a share therein to him and Rs. 150/- as price of the joint paddy appropriated by defendant No. 1. His case, in brief, is that the common ancestor Bhagban had five sons Sadhu. Radhu, natha. Josabanta and Markanda, These five branches completely separated from each other and possessed their properties separately after division in metes and bounds. In the said partition, Sadhu got Re.-/4/ -. Radhu and Natha each sot Re. / 3/3 pies share and Josabanta and Markanda each got a Re.-/2/9 pies share. In the present litigation, the three branches Sadhu, Natha and Markanda are not concerned. Khetri (defendant No. 3) is the widow of Josabanta. His son Adikanda died. Defendant No. 1, the adopted son of Adikanda who was then a minor lived with his natural father Madhu iointlv possessing the share of their branch with the share of Radhu's branch. Defendant No. 2 is the son of defendant No. 1. Madhu left two sons Lakshmi and the plaintiff. Defendant No. 4 is the son of Lakshmi. According to the plaintiff, defendant No. 4 separated about 11 vears back and possessed the eastern portion of their share in the ancestral house over plot Nos. 1377 and 1383, while plaintiff and defendant No. 1 continued in ioint possession of the rest of the properties. About 10 vears ago. plaintiff and defendant No. 1 separated and divided the Amara into two halves by putting up a wattled partition wall. Plaintiff and defendant No. 1 Iointlv constructed a house on plot No. 1383. As there was no partition of the suit properties in metes and bounds, the present suit has been instituted.

(3.) DEFENDANT No. 1 alone resisted the suit. According to him. there was no partition between the five sons of Bhaga-ban in metes and bounds and the suit for partition without bringing all the ioint properties into the hotchpot and implead-ing all the five branches is not maintainable in law. He also denied to have appropriated the paddy for which a claim of damages has been made.