NANDA KISHORE NAIK Vs. SUKTI DIBYA

JUDGEMENT

(1.) THIS second appeal is against the confirming judgment dated 30 -1 -48 of Sri C.C. Coari, District Judge of Cuttack, in M. A. 124 of 1946. It is defendant 1 who is the appellant in this second appeal.

(2.) THE plaintiff (Narasingha Chandra Panda), Dibyasingha (the deceased husband of defendant 2) and Babaji were three brothers. Babaji died long ago leaving no heirs. Dibyasingha died on 20 -4 -34. Defendant 2, the widow of Dibyasingha, executed a deed of sale in favour of defendant 1, the appellant, on 16 -2 -44. The plaintiff's present suit is on the allegation that Dibyasingha died in a state of jointness with him, and as such, plaintiff is the sole surviving coparcener, and defendant 2 had no right, title or interest whatsoever in respect of the property to execute a valid deed of transfer in favour of defendant 1. So he prays for declaration of title and for confirmation of possession, or in the alternative, for recovery of possession.

(3.) BOTH the Courts below have come to a concurrent finding that in fact there was no severance of interest between the plaintiff and Dibyasingha during the life time of the latter. The Courts below, to come to such a conclusion, have relied on the position that only one assessment of Chowkidari tax has been made and that is in the name of the plaintiff as appears from Exs. 1(Ka) and 8 series. The plaintiff also has been paying rent in respect of the entire family land in his own name. The plaintiff alone has been assessed for paying, water -rate tax in the year 1938 -39. They have further relied upon sale -deed (Ex. 5 dated 7 -3 -32), simple bond (Ex. 4 dated 2 -8 -33) and. mortgage bond (Ex. 4(a) dated 15 -5 -33), executed by both the brothers Narasingha and Dibyasingha describing them therein as members, of a joint Hindu coparcenary.