JYOTI RANJAN MOHANTY Vs. ALOK RANJAN MOHANTY

JUDGEMENT

(1.) THE Appellant as Defendant No. 3 challenges a part of the Judgment dated 7.5.2010 and decree dated 22.5.2010 passed by the Learned First Additional Civil Judge (Senior Division)" Cuttack in Civil Suit No. 290 of 2006 decreeing the suit preliminarily on contest against the Defendants for partition holding that the land under Ext. 1 is not the ancestral property of the Plaintiff and as such the suit property is not liable to be partitioned.

(2.) RESPONDENT No. 1 being Plaintiff filed a suit for partition. According to him the suit property described under Schedules A and B are the joint family ancestral property. Defendant No. 1 is the father of the Plaintiff, Defendant No. 2 is the mother and Defendant Nos. 3 and 6 are son and daughter of Defendant No. 1. They have no right, title and interest over the suit schedule properties. He has further stated that Plaintiff along with Defendant No. 1 to 6 have 1/7th share over the suit schedule A and B property and 1/14th share over the C -Schedule property. As the Plaintiff faced inconvenience and hardship over the joint possession of the suit schedule properties, he demanded partition on 20th May, 2005 again on 11th June, 2006 and lastly on 25th June, 2006. But the Defendant did not agree to the proposal of the Plaintiff. Hence, the suit.

(3.) THE Plaintiff and the contesting Defendants adduced their oral as well as documentary evidence. The Plaintiff examined himself as P.W.1. Defendant No. 3 and Defendant No. 6 were examined as D.Ws 1 and 2 respectively. Plaintiff filed certified copy of Record of Rights of the suit properties, which are marked as Exts. 1 to 6. The Defendants filed documents i.e. order of Mutation Case No. 3 of 2000. Hal RO.R khata No. 1306, Consolidation RO.R Khata No. 223, Tax receipt of holding No. 122 series of Tax receipt of holding No. 121/A and series of electricity bills, marked as Ext. A to G. On analyzing the evidence adduced by the parties and their pleadings, the Court below gave a finding that admittedly there was a partition between the Defendant No. 1 and Narendranath and Dhirendranath Mohanty Previously. Defendant No. 1 admitted in his written statement that all the suit schedule properties are joint family properties. However, Ext. 2 reveals that the suit property was exclusively, recorded in the name of Surendranath Mohanty (Defendant No. 1). From Ext. 1 it can not be ascertained on which date the lease was granted in favour of the pattadar, but the period of lease was up to 31st March, 2003 and the said property was not the self acquired property of Defendant No. 1 Ext. 2 is the lease hold property, which was inherited by Defendant No. 1 from his ancestors. However, Ext. 1 is not a clear document to show that as to in whose favour the lease hold patta was granted in the year 1902. Hence, the said schedule 'A' property under Ext. 1 cannot be partitioned. There was prior partition between Defendant No. 1 and Defendant Nos. 7 to 12 and they are the proforma Defendants and the Plaintiff has 1/7th share over the property under Ext. 2 vide khata No. 1306, Plot No. 2254/2862, 2262 and 2257 in respect of Lot No. 1 of 'B' schedule land under khata No. 521 of mouza Karamanga, Jagatsinghpur and all the properties are ancestral property and khata Nos. 521 and 523 were bebandabasta. But the same has been settled. Defendant Nos. 7 to 12 have filed O.E.A. case to settle the land in their favour. The status of bebandabasta converted to stitiban and the co -sharers were separated by residence and mess. On these findings the Learned Court below has decreed the suit as stated above.