SNEHALATA KHUNTIA Vs. BIDYUTLATA SAHOO

JUDGEMENT

(1.) The unsuccessful defendant No. 1 has preferred this appeal challenging the judgment dated 03.10.2008 followed by drawal of preliminary decree in C.S. No. 11 of 2005 by the learned Civil Judge (Senior Division), Keonjhar.

(2.) For the sake of convenience, to avoid confusion and in order to bring clarity, the parties hereinafter have been referred to as arranged in the Court below. Plaintiff (respondent No. 1) filed the suit for partition of the properties described in the schedule of the plaint claiming further relief of rendition of account and mesne profit. The case of the plaintiff is that Saunti Khuntia died on 19.01.1991 leaving his two sons, namely, Harihar Khuntia and Balaram Khuntia (both since dead) and four daughters, namely, Sarojini (since dead), Kanakalata (defendant No. 15), Khiramani (defendant No. 14) and Bidyutlata (plaintiff). Defendant No. 1 is the wife of Harihar and defendant Nos. 2 and 6 are his other successors. Successors of Sarojini are defendant Nos. 7 and 13 whereas defendant Nos. 16 and 19 are the successors of Balaram. Saunti Khuntia had immoveable property in three villages, namely, Harichandanpur, Jaunlipokhari and Singhbilla as described in Schedule B, C and D of the plaint respectively. Properties describing in Schedule "E" of the plaint were in possession of Saunti though recorded in the name of the State. It is also the case of the plaintiff that the houses constructed by Saunti have been given to different persons on rent as described in Schedule "F" of the plaint and Harihar was collecting the rent from all those tenants since January, 1991 except those given on rent to Sushanta and Mahendra. It is further case of the plaintiff that the defendant No. 1 collected the rent from Sushanta and Mahendra at the rate of Rs. 200/- and Rs. 300/- per month respectively till December, 1996. It is also the case of the plaintiff that the rent collected, as stated above, has been misappropriated by the above named collectors. So, besides, making a prayer for partition of the schedule properties, relief of rendention of account and claim of mesne profit have also been advanced. It is worthwhile to state here that the defendants other than those as stated above are the purchasers of the joint family properties.

(3.) Defendant Nos. 1 to 3 (appellant, respondent No. 2 and 3) contested the suit by filing the written statement. It is stated that some properties of Saunti Khuntia situated in village Kalan have not been included in the suit, so also the house situated in mouza Harichandanpur and another plot of land. It is their case that the said land had been purchased by Harihar in the name of Balaram. Harihar constructed a building over the said land and was residing in the said house for more than 15 years. Since 1997, defendant No. 16 is residing there in the said house with her family members as per family settlement. She having inducted tenants, is collecting rent at the rate of Rs. 1250/- per month. It is further stated that Harihar Khuntia had also excavated a tank and dug a well on the said land. It is also their case that Saunti Khuntia had purchased the suit land from out of the income of ancestral joint family property. Thus, the properties of Saunti Khuntia are required to be partitioned accordingly and not as his self acquired property. They have also objected for partition of Schedule-E property described in the plaint in the absence of the State as a party to the suit. They have further claimed that another plot of land comprising quite a sizable area belonging to the State is also in possession of the parties. They have denied the factum of collection of the rent as described Schedule "F" of the plaint. It is also their case that the homestead land and house of Saunti was in possession of Harihar Khuntia as per the agreement dated 22.09.1997 and three rooms have been given on rent. Defendant No. 16 occupied the house situated at Bargoda Sahi of Harichandanpur and collecting rent from the tenants of the said house. The contesting defendants have come up with a case that the plaintiff in convenience with defendant No. 16 has filed the suit for illegal gain. Plea has been advanced that the land sold to defendant Nos. 29 to 31 was to meet the funderal expenses of Saunti Khuntia and, therefore, it is would not come within the purview of partition. They have also pleaded that the property sold by wife of Saunti Khuntia need be excluded from the subject matter of partition. According to the contesting defendants, earlier there was a title suit bearing T.S. No. 85 of 1999, wherein the plaintiff being one of the defendants had not filed written statement and the said suit was allowed to be dismissed. It is further stated that during the life time of Saunti Khuntia and after his death, Harihar Khuntia had shouldered the entire burden of his family till 1997 and got separated the legal heir of Balaram who was doing nothing. It is stated that Harihar had paid the sum of Rs. 12,000/- for litigation expenses of deceased Balaram. Saunti Khuntia had incurred loan of LAMP. So, Harihar paid the said amount which then stood accumulated at Rs. 9000/- and further balance of Rs. 75,000/- towards another loan taken for the marriage of the daughter of Balaram was standing at Rs. 1.25 lakh and now there is an outstanding of Rs. 75,000/-. Besides the above a sum of Rs. 50,000/- is outstanding in the name of Harihara which he had incurred to meet the funeral expenses of his mother. So it is claimed that if the partition would be made that has to be after adjustment of the liabilities. It is stated that Harihar purchased an acre of land in the name of his brother at Bargoda Sahi that has been recorded in the name of Balaram which should not have been excluded from the subject matter of the suit. In view of all these, they pray for dismissal of the suit.