SHYAMASUNDAR MISHRA Vs. SRIBATCHA MISHRA

JUDGEMENT

(1.) Defendant No. 1 in Title Suit No. 20 of 1984 is the appellant in this appeal. This appeal is directed against the judgment and decree dated 12-7-1993 and 28-7-1993 respectively passed by the learned Subordinate Judge, Keonjhar (Now Civil Judge, Senior Division) directing partition and separate allotment of 1/4th share to plaintiffs-respondents No. 1 to 10.

(2.) The following genealogy will indicate the short history of the plaintiffs' case.

(3.) The plaintiff-respondent No. 1 to 10's case in short is that one Purushottam Mishra who was the common ancestor of the plaintiffs as well as defendants 1 to 13 and others was the owner of the suit properties. He had four sons namely Nada, Govinda, Nanda and Bhagirathi. Out of those four sons, it is the admitted case of both parties that Nada, and Govinda died unmarried. Nanda had only one daughter namely Srimati. After marriage of Srimati, her parents died. Therefore, Bhagirathi claimed the entire properties by survivorship and possessed the same in his owner right as the sole owner. The record of rights also stood recorded in his name. Bhagirathi had two sons namely Kalicharan and Benudhar. Kalicharan had four sons namely Naran, Biswanath Sribatcha (Plaintiff) and Shyamsunder, (Defendant No. 1). His first son Naran had three issues namely Pranabandhu, Indumati and Sushila who are the defendants 2 to 4 respectively. Naran died leaving behind defendants 2 to 4. Kalicharan engaged/accommodated one Chaitanya Khandapatra. over Ac. 2.50 decimals of land out of Plot No. 342 as his field labourer. After the death of said Chitanya Khandapatra, his son Banamali had filed a case under O.L.R. Act for settlement of the aforesaid land in his name for which he was impleaded as a defendant. But the same was rejected by the Tahasildar, Keonjhar after stiff resistance by defendant No.1. Biswanath another son of Kalicharan had 7 issues, who have been arrayed as defendants 5 to 11 and claimed their share from the suit properties through Biswanath. Similarly the original plaintiff Sribateha claimed 1/4th share in the suit property. Appellant Shyamsundar son of Kalicharan disputed the share of Sribatcha (Plaintiff). After the death of Kalicharan the other brother Benudhar filed a suit being Title Suit No. 41 of 1960, for partition in the year 1960 claiming 1/2 share over the entire property left by Purushottam. But during pendency of the suit the parties to that suit entered into a compromise out of Court in which Benudhar was allotted 1/2 share and accordingly on the basis of the terms of compromise the suit was dismissed.