RAMESHLAL SANTUKA Vs. SURESHLAL SANTUKA

JUDGEMENT

(1.) These two revisions arise oat of Title Suit No. 383 of 1982 pending on the file of the learned Additional Subordinate Judge, Cuttack. The petitioner and the opposite party are the defendant and plaintiff respectively in the said suit. Civil Revision No. 487 of 1983 is directed against the order dated 15-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Order. 6, Rule 17 of the Civil P. C. for amendment of the written statement. Civil Revision No. 486 of 1983 is directed against the order dated 16-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Section 151 of the Civil P. C. praying for review of the aforesaid order dated 15-7-1983. These two revisions have been heard analogously.

(2.) Defendant-petitioner Rameshlal, Maheshlal, Dinesh Lal and the Plaintiff- opposite party Sureshlal are the four sons of the late Kedarnath Santuka. The plaintiff's suit is for partition of the suit lands together with buildings, structures and the fittings described in the schedule appended to the plaint. According to the plaintiff, the suit properties were acquired in 1966 out of joint family funds. On 30-10-1978 there was ar oral partition amongst the co-sharers in which the suit properties were allotted jointly to the plaintiff and the defendant in equal shares on 27-7-1979 a memorandum of family settlement was drawn up on the basis of the oral partition which had taken place on 30-10-78. The plaintiff and the defendant were in joint possession of the suit properties and they decided to construct two similar quarters on the suit lands. After the commencement of the construction work of one quarters, the plaintiff and defendant entered into a written agreement on 27-8-1980, the terms of which have been indicated in para 3 of the plaint. The plaintiff and the defendant have each contributed about Rs. 2,80,000/- for the construction work so, far. The construction of the first quarters was completed and thereafter construction work of the second quarters was started. The plaintiff and defendant had so long remained in the ancestral house and the plaintiff is still staying in that house, but the defendant shifted to the newly built house on the suit lands. About a month prior to the filing of the suit, differences arose between the brothers and the defendant alone by himself is proceeding with the construction work of the second quarters by using inferior type of materials with the idea that while the defendant would stay in the first quarters, the plaintiff would be obliged to occupy the second quarters. In these circumstances, the plaintiff was obliged, to file the suit for partition against the defendant.

(3.) In his written statement the defendant has denied that there was any oral partition or oral family settlement between the co-sharers on 30-10-1978. It is also denied that the plaintiff has half share in the suit properties. According to the defendant, the suit properties were acquired from the funds of the partnership firm of 'Jayanarayan Kedarnath' which was subsequently renamed as 'Jay Kay' and therefore the suit properties belonged to the partnership firm and not to the Hindu undivided family. The defendant has further stated that no doubt a family settlement deed between the father, mother and four sons had come into existence on 27-2-1979, but the said deed was void, unenforceable, inoperative and inadmissible. According to the defendant, the plaintiff is not entitled to any share in the srat properties.