PITAMBAR KAR Vs. TRILOCHAN KAR

JUDGEMENT

(1.) Plaintiff is the appellant against a confirming judgment. The suit was filed for partition of the joint family properties as described, in Schedule Kha of the plaint by metes and bounds and for relief under Section 4 of the Partition Act as well as for permanent injunction

(2.) The case of the plaintiff is that the Kha Schedule properties as per current settlement correspond to Ga Schedule properties as described in Major Settlement. The plaintiff and the defendants 1 to 5 are the descendants of common ancestor Raghu and the Kha Schedule properties are their ancestral properties. Raghu had two sons namely, Rama and Bidyadhar. Ram had one son namely, Mani and Bidyadhar had four sons namely, Banamali, Hari, Kusa and Bhikari. Plaintiff and the defendant No. 1 are the sons of Bhikari. Defendant No. 2 is the daughter of Bidyadhar. Defendants 3 and 4 are the sons of Banamali and defendant No. 5 is the grandson of Banamali through his son Narayan who is dead. Defendants 9 to 30 are the sons and daughters of plaintiff and defendant Nos. 1 to 5. Defendants 31 to 33 are the daughters of one Makardhwaja Mohapatra who had pre-deceased her mother defendant No. 7 Haramni. Defendant No. 6 Budhiram is in no way related to the family of the parties but a stranger to the family. After current settlement operation Mani and the four sons of Bidyadhar, were separated by mess and residence and separately possessed the different parcels of land as described in Schedule Kha by amicable settlement and convenience. Further, it is specifically pleaded that there was no partition by metes and bounds. Hari died in jointness with his other brother in the year 1947 leaving behind his only daughter Haramani defendant No. 7 who is dead now. Thereafter, Kusa died while in jointness in the year 1951 leaving behind his daughter Suka Dibya defendant No. 8. After death of Hari and Kusa, their shares devolved on their other two brothers Banamali and Bhikari by survivorship. In the year 1964 Bhikari and Banamali separated in mess and residence and were separately possessing different parcels of Kha Schedule properties as per their proportionate shares without any division by metes and bounds. Further case of the plaintiff is that though there was no division of properties by metes and bounds, the Settlement Authorities have arbitrarily prepared the Major Settlement Record separately in the names of co-sharers in respect of some of the joint family properties. It is also alleged that the defendant No. 6 who is stranger to the family obtained a fraudulent sale deed without payment of consideration from Mani in respect of some portion of the suit land and has been trying to forcibly take over possession of the same and also attempting to put fence around the joint family pond and crematory with a view to block the passage of the other co-sharers. On 15-4-1984 the plaintiff requested the defendants for partition by metes and bounds but some defendants including defendant No. 6 did not agree for the same as a result of which the suit had been filed.

(3.) Defendant No. 6 who is alleged to be a stranger to the family filed written statement denying the plaint allegations and his alleged status as stranger to the family. According to him, he is the son of Manis sister having been brought up by Mani from his child-hood. His specific case is that in the year 1950 there was division of properties by metes and bounds in between Mani and the sons and grand-son of Banamali. The said partition was also reduced into writing in a Panchayat Patra with signatures of the co-sharers and a copy of the Panchayat Patra was retained by Mani and other copy was retained by Hari. On 9-4-1955 Mani sold his entire share to defendant No. 6 under a registered sale deed and also executed one Seva Samarpana Patra in respect of his share and the property of their family deity authorising him to worship the deity and possessed the property of the deity which came to his share. By virtue of such Patra, defendant No. 6 is in possession of the properties which fell to the share of Mani and he is in such possession within the family with other co-sharers. The further case of the defendant No. 6 is that the properties kept joint have been given in Schedule 3 of his written statement which comprises of four plots measuring total extent of land Ac. 0.047 decimals. The southern portion plot No. 171 is also not a joint cremation ground. According to defendant No. 6, plot No. 168 is his exclusive homestead and plot No. 171 is his exclusive cultivable land. His further case is that plot No. 163 is exclusively possessed by him in which he has dug a pond with his own income and has also grown fruit bearing trees. Being jealous of the development made in the aforesaid plots, the plaintiff in collusion with the defendants 1 to 5 has filed the suit for partition. Defendants 3, 4 and 5 have filed a joint written statement supporting the plaintiffs case. The minor defendants 9 to 17, defendants 28, 32 and 33 represented by the G.A.L. have filed a separate written statement stating that there was no partition of the joint family properties by metes and bounds though the co-sharers have been enjoying the different parcels of land as per their convenience . It is further case of the aforesaid minor defendants that while allotment of shares among the co-sharers, the interest and convenience of the minor defendants have not been taken note of.