MAHADEB MAHAPATRA Vs. SOVA DIBYA

JUDGEMENT

(1.) THIS appeal is by the defendant and arises out of a suit for partition of the suit land by metes and bounds and for putting the plaintiff in separate pos-session of her share.

(2.) THE plaintiffs case is that her husband, Baleswar Mohapatra and the defendant were two brothers being the sons of one Kelu Mohapatra. This family had sufficient joint family nucleus with the aid of which some more immovable properties were acquired in the name of the defendant In 1944 the plaintiff's husband died, and thereafter, in the same year, the aforesaid acquisitions in the name of defendant were made. After the death of plaintiff's husband, the plaintiff and the defendant possessed jointly all the joint family properties till 1-10-62, when the dissensions arose between them. The defendant tried to get himself solely recorded during the settlement operation in respect of the properties purchased in his name by putting the plaintiff completely in the dark about it. Thereafter the plaintiff demanded partition but the defendant ignored it Hence this suit.

(3.) THE defendant adopted a number of defences. Of them, the material ones may be stated. First of all, the relationship of the plaintiffs husband with the defendant was challenged by denying that the plaintiffs husband Baleswar Mohapatra was the son of Kelu Mohapatra who admittedly was the father of the defendant Plaintiffs husband was alleged to be the son of one Arta Mohapatra of village Dandipur. The plaintiffs locus-standi, therefore, to maintain the suit for partition was challenged. Secondly, the lands purchased in the name of the defendant are the latter's separate properties having been acquired out of his separate income, and so these properties will not be liable for partition. Thirdly, khata No. 38 sought to be partitioned does not belong to joint family and hence should be excluded from partition.