MATHAI NAIK Vs. SITARAM NAIK

JUDGEMENT

(1.) In this appeal, the appellant calls in question the judgment and decree passed by the learned Addl. District Judge, Raingpur in R.F.A No. 13 and 14 of 2011 confirming the judgment and decree passed by the learned Civil Judge ( Sr. Dvn), Raingpur in C.S. No. 7 of 2004. The suit for partition filed by the respondent nos. 1 to 3 as plaintiffs has been decreed and the counter claim filed by the appellant/defendants has been dismissed.

(2.) Plaintiff's case is that the parties are 'Kolha' by caste and as such are governed by the traditional Hindu law. The provisions of Hindu Succession Act etc are not applicable to them. It is stated that Dasaratha Naik had two wives Sutri and Belo. Defendant no.2 is the son of Dasarath through his first wife Sutri and the plaintiffs are the sons of Dasarath through his second wife. Belo had predeceased Dasarath. It is said that after death of Dasarath, though the parties having succeeded to the properties, possessed some portion of the same separately for convenience, but there was no partition in metes and bounds. The plaintiffs requested the defendants for partition and that having been declined, the suit has come to be filed.

(3.) The defendants in the joint written statement at the outset asserted that Dasarath had not married Belo. According to them, having fallen in love with Belo, Dasarath had kept her in his house. It is next stated that in order to avoid further dispute Dasarath during his life time had divided his property in two halves and that is said to be about 35 years prior to the filing of the written statement. In the said division, it is asserted that one share went to the plaintiffs and their mothers and the other share came to the defendants. They further state to have improved the land substantially improving its original kissam. The counter claim has also been levied for a declaration that Belo is not the wife of Dasarath and thus the plaintiffs are illegitimate sons of Dasarath.