BAINA PAIDA Vs. INDRAMANI PAIDA

JUDGEMENT

(1.) THE Plaintiff's second appeal arises out of a suit for partition in respect of his four anna share. The relationship between the parties will appear from the genealogy given in the judgment of the lower appellate court. The common ancestor Hari Paida had four sons: Rama, Darsan, Shama and Banamali. The original Plaintiff was the son of Shama. The original Plaintiff having died, the present Appellant has been substituted in the place of Michel the original Plaintiff. The other Defendants represent the other three branches. The courts below have decreed the Plaintiff's suit for partition partially in respect of the plaint schedule properties excepting Khata No. 27 and 354 of the current settlement and plot No. 1205 appertaining to Khata No. 79, accepting the defence that the two khatas 27 and 354 are the self -acquisitions of the other three branches and that the plot No. 1205 was allotted to the share of Defendants 1 & 2 to the exclusion of the Plaintiff in the previous partition between the parties as Jesthansa. The present appeal by the Plaintiff is confined to these three items, i.e. Khata. No. 27, 354 and plot No. 1205.

(2.) AT the trial stage indeed, there was some controversy between the parties on the question that there was partition by metes and bounds as between the parties previously, but that objection was not pressed by Defendants on account of which both the courts have decreed the Plaintiff's prayer for partition in respect of his four annas share with regard to all other properties. This decree for partition is final and binding as between the parties. It therefore follows manifestly that it is no longer available for the Defendant to contend that there was in fact a partition by metes and bounds which was final and binding as between the parties. It therefore follows that the defence version that plot No. 1205 was allotted to Defendants -1 and 2 in a previous partition as Jesthansa cannot have any legal footing o stand upon and is no longer binding as between the parties. The plot therefore is liable to be partitioned along with the other properties which have been decreed to be partitioned as there was no other plea resisting the partition of this item of property.

(3.) IT is to be mentioned also that it is manifestly clear from the Records and also from the decree passed that there was Sufficient nucleus of the joint family property for the purpose of acquisition of these particular items of property in dispute. The decree has been passed for partition hi respect of eight acres and odd on the basis that they are joint family property. In this view, therefore, it was for the Defendants to prove the particular items of the property to be self -acquisitions of the three branches excluding the Plaintiff and to my mind the settlement entry alone is no legal proof of these self -acquisitions. The lower appellate court has further found that there has been an ouster of the Plaintiff, and as such, these two items of properties have got to be excluded from the schedule of partition. Apart from the entries in the settlement Record of rights as mentioned above, there is no other positive evidence which has weighed with the learned lower appellate court to come to the finding that the Defendants have proved the ouster of the Plaintiff. The settlement entry is quite consistent with the position that the possession of these three co -shares was also the possession of the Plaintiff who was a co -sharer along with the other three branches when the property was found to be in their possession. Indeed, if there was any dispute in respect of these items of property and thereafter the Plaintiff's name was excluded after contest and the Defendants were able to prove their exclusive possession, the Defendants would be able to rely upon the position of ouster. But from the mere entry it is not possible to find as a matter of law that there was ouster from the co -sharers, as his name did not appear in the settlement Record of rights. In this view of the master therefore the appeal is allowed and the Plaintiff's suit for partition in respect of the plaint -schedule properties including Khata. No. 27, 354 and Plot No. 1205 is decreed.