SAHADEB NAYAK Vs. SATYABADI NAYAK

JUDGEMENT

(1.) The plaintiff brought an action for partition claiming 1/4 share together for himself and defendant 1, his brother. The suit was dismissed by the trial court; but decreed in appeal. Hence this second appeal by defendant 11.

(2.) The parties are relations. One Arta had four sons, Ganga and Narayan through the first wife and Jagannath and Raghu through the second wife. Satya-badi, the plaintiff, and Bira (defendant 1) are the grandsons of Narayan. Debahari (defendant 2), Niranjan (defendant 3), Chitrasen (defendant 4) and Basanta (defendant 5) are the descendants of Ganga. Kamaraju (defendant 6) Laxman (defendant 7), Rajan (defendant 8), Arjuna (defendant 9), Nakula (defendant 10) and Sahadeb (defendant 11) are the descendants of Jagannath. Tarini (defendant 12), Tribeni (defendant 13) and Kalu (defendant 14) are the descendants of Raghu Nayak. Partition was sought in respect of three plots- Survey Nos. 56 and 201 under Patta No. 23 and Survey No. 64 under Patta No. 762, two acres and twenty decimals in extent. The plaintiff alleged that the suit property had not been partitioned by metes and bounds though separate parcels were being amicably enjoyed for convenience. As in a proceeding under Section 145, Criminal P. C. possession of Sahadeb (defendant 11) was declared in respect of some land comprised in Survey Nos. 64 and 201, the plaintiff filed Title Suit No. 133 of 1964 for ejectment of Sahadeb. The matter ultimately came to this Court in Second Appeal No. 207 of 1967. This Court perceiving certain technical difficulties in the matter, remanded the suit to the trial court observing that the parties, if they so desired could amend the pleadings. The plaintiff, however, withdrew the said suit and filed the present one for partition alleging that the shares of the parties were not clear and there was no clear proof of partition of the property in suit. Defendants 3 and 5 supported the plaintiff. The only other defendant who filed written statement was defendant 11. He controverted the plaint allegations stating that there had been a complete partition of all the properties amongst the parties and refuted the assertion that the property in suit was being enjoyed by the parties in separate parcels according to convenience. He asserted further that in Title Suit No. 133 of 1964, the plaintiff had taken a stand that there was a complete partition of all the properties. In view thereof a suit for fresh partition was not maintainable.

(3.) The principal finding recorded by the trial Judge was that all properties including the property in suit had been partitioned in a partition in the year 1918. So, the suit was not maintainable. The appellate court decreed the suit holding that defendant 11, on whom the onus lay to establish previous partition, having failed to produce the material document, the property was available to be partitioned.