KRUSHNA BERIHA Vs. GULABATI PANDEY

JUDGEMENT

(1.) THIS First Appeal is directed against the judgment and decree passed in Title Suit No. 72 of 1984. The aforesaid suit was filed for partition of suit Scheduled 'A' property into two equal shares and allotment of one share to the plaintiff and for declaration of plaintiff's right, title and interest over Schedule 'B' property and recovery of possession of the same.

(2.) THE case of the plaintiff in short is as follows : One Padmolochan Beriha had three sons : Nitai, Abhi and Krushna (Defendant No. 1 in Court below and appellant before this Court). Abhi died issueless and his line extinguished. Nitai, the father of the plaintiff, was murdered on 6.4.1984 leaving behind the plaintiff as his only issue. At the time of death, Nitai was in jointness with his brother Krushna Defendant No. 1 and the Scheduled 'A' property was their joint family property. Apart from that, Nitai, who was working as a Mate in the P.W.D. Department, had constructed a pucca house out of his own income, which is Schedule 'B 1' property. Nitai, while working as a Mate, came across defendant No. 2, took fancy on her and brought her to his house which was protested by his wife Ichhabati. Ultimately Ichhabati was driven out of Nitai's house and Nitai started living with Nura the present appellant No. 2. According to the plaintiff, by the time Ichhabati was driven out of Nitai's house, she had already born to Nitai through Ichhabati. The plaintiff was brought up by Nitai and he performed her marriage in the year 1966. The further case of the plaintiff is that Nitai had other suit properties along with the Stridhana property of the plaintiff at the time of his death and defendant No. 2 in conspiracy with defendant No. 1 was trying to deprive the plaintiff of the said property. Therefore, the suit was filed for the above reliefs.

(3.) AS many as 8 issues were'framed. So far as the questions as to whether Ichhabati is the legally married wife of Nitai and whether the plaintiff is their daughter are concerned, the trial Court concluded that Ichhabati is the married wife of Nitai and the plaintiff is their legitimate daughter. Regarding the status of defendant No. 2, the trial Court disbelieved the plea taken by the defendants and declared that Nura is not the legally married wife of Nitai Beriha. So far as adoption of the children of appellant No. 1 is concerned, the trial Court disbelieved the story advanced by the defendants. Regarding the claim that the Schedule 'B 1' and Schedule 'B 2' properties are the self acquired properties of Nitai Beriha, the trial Court disbelieved the contentions of the plaintiff that Nitai had built his house out of his own income and further held that the suit Schedule 'B' properties are joint family properties of late Nitai and his brother, i.e., appellant No. 1. Deciding the question of bar of Civil Suit under the provision of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, the trial Court concluded that the suit does not come under the prohibitory provision of Section 4 of the said Act. It was further held that the feasibility of partition, if prohibited by the Consolidation Act, can be considered at the time of final decree in a suit for partition.