PADMA CHARAN SAHOO Vs. DHARMANANDA PANI

JUDGEMENT

(1.) THE Appellants in this appeal have assailed the judgement and decree passed by the learned Subordinate Judge, Nayagarh (as it was then) in T.S.No -107 of 1988, decreeing the suit in part in passing a preliminary decree for partition entitling the Appellant to half share in respect of properties described in 'Schedule -A' of the plaint and refusing to grant any relief of partition in respect of 'Schedule -B' and ''Schedule -C' properties. For the sake of convenience to avoid confusion and for proper appreciation, the parties hereinafter are being referred to as they have been arrayed in the original suit. It is pertinent to state that one Matiani Sahoo was the original plaintiff and on account of her death during the pendency of the suit, her legal representatives having been substituted prosecuted the suit and are now on appeal being aggrieved by that part of the preliminary decree as stated above.

(2.) ) The case of the plaintiffs is that one Mahadev had two sons namely: Bauri and Nityananda and the parties being Hindus are governed by Mitakhara School of Hindu Law. These two brothers had formed the joint family. It is stated that the they during their life time had separated from each other in mess and estate after 1932 -33 settlement and they were possessing separate parcels of land out of the land described in 'Schedule -B' of the plaint. It is next stated that there was no partition between them in metes and bounds. The original Plaintiff is the daughter of Nityananda whereas the Defendant No -1 is his adopted son and Defendant No -2 and 3 are the two sons of Bauri. The 'Schedule -B' property is said to be the joint family property and accordingly it is asserted that plaintiff along with Defendant No -1 to be having half over it where as Defendant No -2 and 3 are said to be entitled to the rest. So far 'Schedule -A property is concerned, the same is claimed to be the separate and self -acquired property of Nityananda. 'Schedule -C' property are said to be the movables of the joint family and therefore, the plaintiffs claim half share along with the Defendant No -1 over the same. It is their further case that 10 years prior to the presentation of the plaint Nityananda died and original plaintiff Matiani then repeatedly requested the Defendant Nos. 2 and 3 for partition of schedule property which was deferred on various pretexts. Thereafter, lastly when it was not acceded to on 26.06.1987, she had to file the suit.

(3.) ) On such rival pleading the trial court framed as many as five issues such as the maintainability of the suit, existence of cause of action, prior partition between the parties, the status of the present Plaintiffs and appears to have rightly gone to take up the issue regarding the status of the present Plaintiffs as it goes to the root of this case. Answer has been rendered in favour of the Plaintiffs. Next issue No.3 has been taken up for decision as to whether there has been complete and final partition between the parties. Ultimately on analysis of evidence adduced by the parties in the touch -stone of the pleadings and documentary evidence, let in during trial, it has been decided holding the Plaintiff's entitlement to half share only in respect of 'Schedule -A' property, finding them as not entitled to the relief of getting any share from out of "Schedule -B' and 'Schedule -C' properties. Maintainability and existence of cause of action have been decided in favour of the plaintiffs.