AKHIL BEHERA (DEAD) REPRESENTED BY INDRA DEI AND ORS. Vs. SMT. GOLAP BEWA (DEAD) BY SMT. SUBASHA DEI & ORS.

JUDGEMENT

(1.) The core question that arises for determination in this appeal is whether the trial Court rightly held that the properties described in Schedules 'B' and 'C' of the plaint were the separate properties of late Guru Charan Bchera.

(2.) The plaintiff is in, appeal against the judgment and decree passed by the learned Subordinate Judge, Baripada in Title Suit No. 21 of 1979-1 wherein he decreed the suit preliminarily in part with the direction that the properties described in Schedule 'A' of the plaint will be divided into two equal shares, one of which will be allotted to the plaintiff and the other to the defendants 1 and 2 with adjustment of the land sold by the plaintiff from his share and rejected his plea for partition of 'B' and 'C' schedule lands.

(3.) Plaintiff-appellant Akhil Behera filed the aforementioned suit against respondent No. 1 Smt. Golap Bewa (defendant No. 1), respondent No. 2 Smt. Subasha Dei (defendant No. 2) and the purchasers, respondent No: 3 Smt. Ashamani Mishra (defendant No. 3) and respondent No. 4 Shri Hari Prasad Paul (defendant No. 4) claiming half share in the properties described in Schedules 'A', 'B' and 'C' of the plaint. Schedule 'A' comprises of A 3.33 decimals of land in village Khetrapatna and A. 0.79 decimals of land in village Indapahi, Schedule 'B' comprises of A. 1.68 decimals of land in village Khetrapatna and Schedule 'C' comprises of A. 0.17 decimals, of homestead land in mouza No. 44, Pir and Pragna Majhalbhag, Schedules 'E' and 'F' comprise of portions of 'A', 'B' and 'C' schedule lands and other lands sold by Guru Charan to Hari Prasad ' Paul and Smt. Ashamani Mishra. The case of the plaintiff, shortly stated was that Kartik Behera had two sons, Guru Charan Behera and Akhil Behera (plaintiff). Defendants No. 1 Golap Bewa is the wife of Guru Charan Behera and defendant No. 2 Subasha Dei is his daughter. Kartik Behera died about 50 years prior to the suit and Guru Charan died in 1976. At the time of death of his father the plaintiff was about 8 to 9 years old. Guru Charan Behera as the elder brother became the head of the family and was looking after the joint family properties. The plaintiff picked up carpen try work which is their family trade, early in life and became a good carpenter. He was passing on his earnings to Guru Charan who was about 30 years older than him. The lands described in Schedule 'A' to the plaint were purchased out of joint family funds in the names of the two brothers. Though the properties described in Schedules 'B' and 'C' were also purchased out of joint family Guru Charan surreptitiously managed to get the sale deeds in his name only. Though the parties were in separate possession of some of the joint family properties according to convenience, there was no division of all the properties by metes and bounds. After the death of Guru Charan defendants 1 and 2 declined to give usufruct of the land to the plaintiff. The demand for partition of the joint family properties was rejected by them. Under such compelling circumstances he filed the suit seeking the reliefs noted earlier.