ANIRUDHA DAS Vs. RANJIT PRASAD DAS

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 17.7.1999 and 28.7.1999 passed by the learned Civil Judge (Senior Division), Bhadrak in T.S. No.147 of 1994-I the defendant No.1 before the learned lower Court has preferred this appeal only against the lower Court's direction for partition of schedule 'Chha' property.

(2.) THE suit is for partition. Plaintiffs in the suit are respondent Nos.1 to 6 herein. They filed the suit claiming 1/5 th share in plaint schedule 'Kha' to 'Chha' properties. However, the learned lower Court held schedule 'Kha' (except Lot No.7) and 'Cha' property to be self acquired property of late Amarnath, the father of the present appellant and directed all other plaint schedule properties, including schedule 'Chha', to be partitioned allowing 1/5 th share to each of the branches of late Bhagabat, the common ancestor. But, as already indicated, the present appeal is confined to schedule 'Chha' property which is described as homestead land measuring Ac.0.25, appertaining to Plot No.434 under Khata No.216 of Mouza Naripur situate in Bhadrak town.

(3.) PLAINTIFFS ' case is that late Bhagabat was having business in Calcutta. Out of the income from his business he acquired all the properties described in the plaint schedules 'Kha' to 'Chha'. So far plaint schedule 'Chha' property is concerned, it is claimed that since Bhagabat was mostly staying at Calcutta it was his son Karunakar who negotiated with one Pranakrushna Panda to purchase schedule 'Chha' land and Bhagabat agreed to advance the money needed for the sale transaction. In November 1946, during the absence of Karunakar, father Bhagabat sent his son Amarnath to get the deed registered at Chandabali since the wife of said Pranakrushna Panda, namely, Laxmi Devi was then residing at Chandabali. Thus, 'Chha' schedule property was purchased with the money supplied by the father Bhagabat. After acquisition of the land, and some time in 1948 Bhagabat constructed a thatched house with brick-walls on that land. Whenever he came to Bhadrak he used to stay in that house. Dhaneswar (P.16) while reading in Bhadrak College was also residing in that house. Later on Karunakar (P.7) used to stay in that house as he was a practicing lawyer in Bhadrak. During 1967-1972, while he was carrying on his political activities, he built a pucca house on 'Chha' schedule land out of his own funds. Thus, the schedule 'Chha' property has always been enjoyed as part of the joint family property. It is also claimed that the holding of N.A.C., Bhadrak in respect of the 'Chha' schedule property stands in the name of Karunakar who pays tax for the said holding. The land stood recorded at the yadast stage of major settlement in the name of Bhagabat which, after the death of Bhagabat, was corrected and again it was corrected after the death of Amarnath. That apart, Karunakar had leased out the pucca house and the thatched house for 10 years under a registered deed and subsequently brought a suit for eviction in the Court of the Sub- Judge, Bhadrak and obtained a decree which has been put to execution for eviction. That apart, the land has been settled to rent in the names of the contesting parties by the Tahasildar, Bhadrak.