SRIMATI DEI Vs. BAIDHAR BARIK

JUDGEMENT

(1.) The legal heirs of the deceased plaintiff Baidhar Barik are the appellants before this Court against a confirming judgment.

(2.) The case of the plaintiff is that one Jagannath Barik was the owner of the suit lands and after his death the same devolved on his two sons. Baikuntha and Bauli. The aforesaid two sons remained joint and the settlement record of rights indicate such jointness. Thereafter, there was an amicable partition between both the brothers and the suit lands fell to the share of Baikuntha. While in possession of the suit lands Baikuntha died leaving behind his second wife Kuturi. Kuturi who succeeded to the suit property after death of her husband Baikuntha alienated some portions of her share in favour of one Michhu Mani and her minor son Adikanda Panda. Hema Dei, the daughter of Baikuntha through his first wife in connivance with her maternal uncle also transferred the same lands in favour of the defendants. Due to subsequent transfer made by Hema a suit was filed by Michhu Mani and her minor son in the year 1944 (O.S. No. 412/44) in which Kuturi, Hema and present defendants were also parties. The suit ended in a compromise where the right, title and interest of Michhu Mani and her minor son were accepted over the disputed land. After the said suit ended in a compromise the 'Kha' schedule lands were alienated by Kuturi in favour of Arjuna Rout under a registered sale deed dated 21-9-1945. Arjuna Rout transferred the same in favour of one Nabakishore Panda and in turn Nabakishore Panda also transferred the same in favour of Shankar Barik who is the father of the plaintiff No. 1 under a registered sale deed dated 1- 11-1960. Shankar possessed the land as described in 'Kha' schedule till his death and thereafter the plaintiffs possessed the same on their own right and title. The defendants stated creating trouble for which an Amin was deputed to the spot for demarcation of the said land. Even after such demarcation, the defendant did not restrain from causing disturbance with possession of the plaintiffs as a result of which the plaintiffs filed O.S. No. 2/66. Though the suit was dismissed by the trial Court, on appeal the same was allowed and the right, title and interest of the plaintiffs over 'Kha' schedule land was declared. In that suit, an observation was made to the effect that the plaintiffs are at liberty to get the 'Kha' schedule land for partitioned and allot the same in his favour on the basis that the land originally belong to the family of Baikuntha. It spite of several approaches since the family of the defendant did not go in for partition, the suit was filed. The prayer in the suit is for partition of the joint family properties belonging to the defendants family and for allotment of the land purchased by the plaintiffs in their favour.

(3.) The defendant filed his written statement denying the allegations altogether. The case of the defendant is that the common ancestor Jagannath Barik had a brother named Lokanath. Lokanath died leaving behind his widow Saria as his only legal heir. Though Jagannath and Lokanath were possessing the ancestral properties by mutual separation, their home and homestead remained joint. Accordingly, in the current settlement record of rights the names of Baikuntha, Bauli and Saria Bewa found place. While Baikuntha and Bauli were living jointly, Baikuntha died leaving his only daughter Hema and she succeeded to the properties of Baikuntha by way of Survivorship. In course of time Saria also expired having no issue and her share was enjoyed by Bauli who is the predecessor or the defendant. Kuturi was a concubine of Baikuntha and no interest devolved on her after death of Baikuntha. The compromise that was entered into between the parties in O.S. No. 412/44 is not binding on the defendant as he was not properly represented in the suit being a minor at the relevant time. An alternative plea was also taken stating that defendant had acquired title by way of adverse possession and the plaintiffs being strangers to the family of the defendants cannot pray for partition.