TEIPAL KHANDELWAL Vs. MST PURNIMA BAI

JUDGEMENT

(1.) Ramgopal (original plaintiff) who died during the pendency of the suit and Balmakund (defendant No. 9 and D. W. 2) were the sons of one Sitaram Agarwalla. Defendant No. 10 is the son of defendant No. 9. Substituted plaintiffs 1 (a) to 1 (i) (respondents 1 to 10) are the heirs of deceased Ramgopal. Defendants 1 to 8 are the appellants,

(2.) The case of the substituted plaintiffs may be stated in short. The disputed house is a double storeyed building situate in Jharsuguda town in the district of Sambalpur. Defendants 1 to 8 were admittedly the monthly tenants under Ramgopal and defendant No. 9 from 1941 onwards. The landlords served a notice to quit on the tenants and filed T. S. No. 35 of 1957 for eviction which ended in a compromise decree on 1-7-1.959. Under the compromise, defendants 1 to 8 agreed to vacate the suit house not later than two years from the date of the decree and pay compensation at the rate of Rs. 50/- per month from 1-4-1959. Defendants Nos. 4 to 8 paid Rs. 200/-to Ramgopal and Rs. 50/- to defendant No. 9 towards compensation and did not pay the balance. Taking advantage of the dissension between Ramgopal and defendant No. 9, defendants Nos. 1 to 8 prevailed upon defendants Nos. 9 and 10 to sell away their half share of the suit house in favour of defendant No. 4 by a registered sale deed (Ext A1 on 30-10-1960 for Rs. 8,500/-. The sale deed recited that the northern half of the suit house had fallen to the share of defendants Nos. 9 and 10 in a partition effected on 29-9-1950 though there was no partition. The suit was filed for partition of the house in two equal shares with a prayer that Ramgopal would buy the share of the dwelling-house purchased by defendant No. 4 under Section 4 of the Partition Act Thereinafter to be referred to as the Act) on payment of a price to be fixed by the court. There was a prayer for recovery of Rs. 800/- as damages and for future damages. Defendants Nos. 4 to 8 contested the suit. In the written statement filed by them they made the following averments. The disputed house was not a dwelling house. It was partitioned by metes and bounds by an agreement dated 29-9-1950. The other properties of Ramgopal and defendant No. 9 had been partitioned amongst them by metes and bounds more than 36 years before the suit Under the compromise in T. S. No. 35 of 1957 defendant No. 5 paid a sum of Rs. 200/- to the plaintiff and Rs. 100/-to defendant No. 9. As the disputed house was not a dwelling-house of the family of Ramgopal and had been divided by metes and pounds in 1950. Section 4 of the Act has no application. Even assuming that Section 4 has application the plaintiffs were liable to pay the price of the half share as on the date of the suit and not as on the date of the sale.

(3.) The learned Subordinate Judge recorded the following findings:--