NIRA DEI Vs. SADASIBA MAHANTA

JUDGEMENT

(1.) THIS appeal is by the plaintiff and is directed against the confirming decision of the lower Appellate Court.

(2.) THE plaintiff brought the suit for partition of the suit properties mentioned in Sch. 'Kha' in the plaint by metes and bounds. Plaintiff and defendants 1 to 7 are members of one family as would be seen from the following genealogy :It is the admitted case of the parties that this Jaganath Mahanta had two wives. By his first wife he had two sons Gangadhar and Lachman, who had admittedly no interest in the suit properties. THErefore, the suit is to be disposed of having regard to the aforesaid genealogy only and ignoring two sons of Jaganath by his first wife altogether from consideration. Lakshan was the original defendant No. 5 in the suit and he having died during the pendency of the suit, his widow Champa has been substituted in his place. THE suit properties are situated in five villages. Items 1 and 2 constitute a tank in village Chatraipur and item No. 3 is the homestead land with house standing thereon in village Chachhinapada. Item Nos. 4, 5 and 6 are agricultural lands situated in village Bahananda, Pandugadia and Karanjakoili. Plaintiff's story is that Haguru Mahanta died in 1958 leaving behind his widow and three daughters, plaintiff and pro forma defendants 6 and 7. His widow died in 1961. THE suit properties are the ancestral undivided properties of Haguru and his two brothers. Upon the death of Haguru the plaintiff is entitled to carve out her 1/9th share in the suit properties by partition by metes and bounds. It is alleged that the defendants 1 to 4 got their names fraudulently mutated in respect of the suit properties situated in village Chhotraipur. Bahanada and Karanja Koili in the year 1960-61 and further that defendants 1 to 4 sold away the lands mentioned in Schedule Gha of the plaint to defendant No. 8 and the lands mentioned in Schedule Gha to defendants 9 and 10 as if these properties belonged to them exclusively. This gave rise to the cause of action for the suit.