BIRA MALLIK Vs. CHAITAN MALLIK

JUDGEMENT

(1.) THIS revision is by the defendant and arises out of a suit for partition which the plaintiff-opposite party sought to carve out his moiety share in the suit-property allotting the balance half to the petitioner.

(2.) THE plaintiff's case was that all the ancestral properties of the parties had been partitioned by metes and bounds excepting the suit-property which is the homestead of the parties. The petitioner in his written statement pleaded that the lands set out in Schedule Ka of the written statement were also the joint family property of the parties, and so liable to partition. Since all the joint family properties had not been included in the partition suit, the suit was liable to be dismissed. Accordingly, one issue was framed as to whether the properties given in Schedule Ka of the written statement had been partitioned amongst the members of the family previously and whether all the joint family properties liable to partition, have been brought into hotchpot in the suit.

(3.) THE trial court held that the properties in Schedule B of the plaint as well as those in Schedule Ka of the written statement, are liable to partition, since they are joint family properties and had not been partitioned before. The plaintiff, thereupon, appealed in respect of that portion of the decree under which Schedule ka property of the written statement was directed to be partitioned. The trial court came to the conclusion that Ka Schedule property was the joint family property and was thus liable to partition reiving upon the statement of P. W. 1. the son of the plaintiff. Schedule Ka contained four lots. According to the plaintiff, 'his father purchased lots 1 and 2 and lots 3 and 4 were joint family properties which had been allotted to his share in the prior partition. P. W. 1, son of the plaintiff, however, stated that they became separate in mess only twenty years ago and lots 1 and 2 of Schedule Ka were purchased by his father.