SHYAM SUNDAR MALLIK Vs. BAIDHARA MALLIK

JUDGEMENT

(1.) PLAINTIFFS are the appellants before this Court. Learned Subordinate Judge, Balasore decreed the plaintiffs' suit in part preliminarily rejecting prayer for partition in respect of 'Kha' schedule property, allowing claim of defendants 1 to 6 for repurchase of share of defendant No. 7 under 'Kha' schedule property from the pontiffs. So far as 'Ga' schedule properties are concerned, prayer for partition was allowed and plaintiffs were declared to have 1/6th share of defendant No. 7. In appeal preferred by the plaintiffs the said decree was modified to the extent that the defendants 1 to 6 will have right of pre emption in respect of 'Gha' schedule property measuring Ac. 0.50 1/2 decimal from 'out of plot No. 552 and Ac. 0.06 1/2 decimals from out of plot No. 555 under Khata No. 298.

(2.) CASE of the plaintiffs is that one Banei Mallick is the common ancestor who had three sons, namely Suduri, Rathi and Sero. The aforesaid three sons were amicably possessing their joint family properties separately since 1920 and were also separate in mess. According to their separate possession three branches of Suduri, Rathi and Sero were recorded having 1/3rd interest each in respect of the properties for the current settlement record of rights. After death of Suduri, Rathi and Sero their successors in interest respectively were possessing lands and accordingly the properties came into possession to the successors in their respective branches who are parties before this Court. The appellant had purchased 57 1/2 decimals of land by a registered sale deed from respondent No. 7 and continued to reside in his father in law place leaving his ancestral properties and remained in possession of the same after such alienation. The lands possessed by the appellants and respondents 1 to 6 were joint without any demarcation line in between. Out of the lands purchased by the appellants plot No. 552 measuring Ac. 0.06 1/2 decimals of land and plot No. 555 measuring Ac. 0.05 1/2 decimals of land under Khata No. 298 have been indicated as 'Ga' schedule and are homestead which was alienated by defendant No. 7 in favour of the appellants. Case of the plaintiffs appellants is that since the respondents created disturbance in their peaceful possession they had no other option except to file suit for partition of 'Kha' schedule land portion of which were alienated to the appellants by respondent No. 7 which is also subject matter of 'Ga' schedule property.

(3.) ON the basis of the pleadings as aforesaid the learned Subordinate Judge framed nine issues and held that there was severance of joint family status amongst three branches and there was no partition by metes and bounds. Trial Court further held that the plaintiffs stand on the footing of defendant No. 7 from the time of execution of the sale deed by defendant No. 7 in their favour in the year 1961 and continued to be so as there has been no partition among the three branches by metes and bounds. Trial Court further held that so long as their ouster is not established by defendants 1 to 6 with sufficient materials and cogent evidence the rights of the plaintiffs over their respective share of properties cannot be denied. It was also held that the defendants 1 to 6 have right to repurchase the lands purchased by the appellants from defendant No. 7 from out of plot Nos. 552 and 555 which from part of dwelling house under Section 4 of the Partition Act. So far as 'Ga' schedule properties are concerned, trial Court held that the plaintiffs are entitled to get declaration to have 1/6th share of Kangali in their favour and accordingly decreed the suit in part. In appeal the lower appellate court confirmed the finding of the trial Court so far as 'Kha' schedule property is concerned, but modified the decree in respect of 'Ga' schedule property and held that the defendants 1 to 6 will have right of pre emption in respect of the lands out of plot No. 552 and 555 as mentioned above and dismissed the appeal with the aforesaid modification.