HARA PRASAD PANDA Vs. HIRAMONI DEI

JUDGEMENT

(1.) THIS case arises out of two suits which were tried together and were disposed of by the same judgment by both the courts below but two decrees were drawn up. This second appeal is an appeal from a decision in only one of the said two suits. The appellants herein Haraprasad Panda and Jogeswar Panda did not prefer an appeal against the decree in the other suit which was against them.

(2.) THE facts briefly stated are these: One Krupasindhu Panda and Markanda Panda were two brothers. The appellants herein Haraprasad Panda, Jogeswar Panda and three others (Anirudha, Bidyadhar and Sarbeswar) belong to Markanda's branch. Hiramani Devi and Saraswati Devi as widows are the only two surviving members representing Krupasindu's branch of family. It is said that Hiramani's husband khetramohan during his life time had sold plot No. 447 out of the family property to one Gopal Chandra Chand who in turn sold the same to one Ramesh Chandra panda a stranger purchaser. The appellants Haraprasad and Jogeswar are said to have removed bamboos from the plot and thus interfered with the purchaser ramesh Chandra's possession. Thereupon in 1957 the purchaser Ramesh Chandra filed a suit against the said Haraprasad Panda and Jogeswar Panda being O. S. 307 of 1957 for declaration of title and possession in respect of the said plot No. 447. In the said declaratory suit the defence taken by Haraprasad and Jogeswar was that there was no partition by metes and bounds of the suit holding and they claimed to be in possession of the said plot No. 447 throughout. They are, however, said to have admitted the story of amicable partition. As a sequel to the said suit O. S. 307 of 1957 by Remesh Chandka Panda, the appellant herein haraprasad and Jogeswar and his three said agnates cousins Anirudha, Bidyadhar and Sarbeswar as plaintiffs filed a suit being O. S. 110 of 1958 for partition of the joint family properties. In the said suit O. S. 110 of 1958 the two widows haramani and Saraswati Devi representing Krupasindhu's branch of the family and six others including the purchaser of the said plot No. 447 Ramesh Panda were also made party defendants. The purpose for filing the said suit for partition was that in case the sale of the said plot. 447 by Haramani's husband Khetramohan of krupasindhu's branch to Ramesh Chandra Panda is found to be valid the purchaser ramesh will then get the same as out of the share of Krupasindhu's branch of the family. Both the said two suits were heard analogously.

(3.) THE material findings of the Courts below in the said two suits analogously heard were these: The trial court in Ramesh's declaratory suit O. S. 307 of 1957 for plot No. 447 found that there was a partition of the joint family properties between the two branches of the family; that Ramesh had acquired title and possession to plot No. 447 and he was to recover Rs. 5/- as price of bamboos removed as damages and the suit was decreed accordingly in favour of Ramesh. In the partition suit O. S. 110 of 1958 the trial court found that there was a previous partition of the entire joint family properties except two tanks which were directed to be partitioned in the manner indicated in the judgment and that the other properties in suit cannot be partitioned. Separate decrees were drawn up in both the said suits. The appellants Haraprosad and Jogeswar filed two separate appeals against the decision of the trial court in both the said suits, namely, M. A. 80 of 1961 against the decision of the trial court in the partition suit O. S. 110 of 1958 and M. A. 87 of 1961 against the decision in favour of the stranger purchaser ramesh in his suit O. S. 307 of 1957 with regard to plot No. 447. The learned lower appellate court heard together both the said two appeals and dismissed them. The judgment and decree passed by the trial court in both the said suits were thereby confirmed. Two separate decrees were also drawn up in these appeals before the lower appellate Court. This second appeal has been filed by haraprasad and Jogeswar from the judgment and decree passed by the learned lower appellate court in M. A. 86 of 1961 confirming the judgment of the trial court in the partition suit No. O. S. 110 of 1958.