ANAM CHARAN BEHERA Vs. ADIKANDA PATRA

JUDGEMENT

(1.) This second appeal was disposed of by judgment dated 30.8.1996 allowing the same and setting aside the judgment and decree passed by the First Appellate Court while confirming that passed by the trial court. The respondent no. 1 approached the Hon'ble Apex Court against the judgment passed by this Court in Civil Appeal No. 996 of 1997. The Hon'ble Apex Court remitted the matter back to this Court with the following order:

(2.) Hence, the second appeal was heard afresh after substitution of all the legal heirs of some of the deceased parties. The appellants are plaintiffs who filed Title Suit No. 4 of 1977 before the Sub-Judge, now Civil Judge (Senior Division), Kendrapara for partition with a prayer under Section 4 of the Partition Act to repurchase the lands which include house and homestead, from defendant nos. 1 and 2, who, according to the plaintiffs, are strangers to their family. The plaintiffs' case was that the common ancestor of the plaintiffs and defendant nos. 3 to 10 and 12 was one Iswar Behera, who died leaving behind two sons, Maguni and Jagu. Defendant nos. 5 to 10 are of Maguni's Branch and Jagu's sons are Hari, defendant no. 12 and Pari, father of defendant no. 4 and plaintiff nos. 1 and 2. The further case of the plaintiffs was that the suit plot nos. 506 and 507 are the joint family homestead properties along with the house standing thereon in which Jagu had half share. Defendant no. 12-Hari from his young age was residing in Calcutta. The second son of Jagu (Pari) was alone enjoying his father's half share in the above two plots and on his death, the plaintiffs and defendant no. 4 have been jointly possessing the same. In 1972, defendant nos. 1 and 2, who were strangers to the family of the plaintiffs, purchased Ac. 0.03 decimals of land from the aforesaid two plots of defendant no. 12 and tried to forcibly possess it for which the plaintiffs were compelled to file the suit for partition seeking the relief under Section 4 of the Partition Act to repurchase the land from the stranger purchasers, defendant nos. 1 and 2. The purchasers, defendant nos. 1 and 2, traversed the pleadings in the plaint by filing a joint written statement. Their case in short is that all the properties including the suit property have long since been amicably partitioned between the co-sharers. Therefore, the suit plots having lost it of the joint family property qua the dwelling house, the plaintiffs' suit for partition is not maintainable.

(3.) The trial court after framing the issues and hearing the suit where parties led their evidence both oral and documentary decreed the plaintiff's suit. Being aggrieved, defendant nos. 1 and 2 carried an appeal being Title Appeal No. 12 of 1982, which was heard by the learned Second Addl. District Judge, Cuttack, who reversed the judgment and decree passed by the trial court. The plaintiffs, therefore, preferred the present second appeal, which was once decided by judgment dated 30.8.1996 as already stated above and is being heard again on being remanded by the Hon'ble Apex Court by order passed in the above mentioned Civil Appeal.