SANATAN SAHU Vs. NARAN BEHERA

JUDGEMENT

(1.) DEFENDANT No. 18 in Title Suit No. 59 of 1978 was the sole appellant in this First Appeal. The above noted appellants were substituted in his place after his death. Plaintiffs are the respondent Nos. 1 to 3 and they are the contesting respondents in this appeal/

(2.) IN the suit, plaintiffs sought for the following reliefs :

(3.) WHILE not challenging to any other findings recorded by the Courts below on other issues, the appellants challenge to the legality and propriety of the finding on Issue No. 6. Learned counsel for the appellants argues that the relief under Section 4 of the Partition Act is not available to the plaintiffs when the appellants have not filed the suit for partition. In support of their contention appellants relies on the ratio in the cases of Babulal v. Habibnoor Khan (Dead) by L.Rs. and Ors., AIR. 2000 SC 2684; Gautam Paul v. Debi Rani Paul and Ors., AIR 2001 SC61; and Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh, AIR 2002 SC 2500. Learned counsel for the plaintiffs/respondents while not disputing, to the correctness of the ratio propounded by the Apex Court in the above cited decisions, however, argues that plaintiffs' interest be protected under Section 44 of the Transfer of Property Act. In that respect learned counsel for the appellants replies that since the suit land is not a house and only a homestead land and that to such property is in their possession, therefore the provision under Section 44 of the T.P. Act may not be invokable at this stage.