RAGHUNATH PANDA Vs. RADHAKRISHNA PANDA

JUDGEMENT

(1.) ONE Sitaram Panda had three sons - Kalia Kanhu (who died in 1952), Jagannath (who died in 1925) and Khetrabati (Plaintiff No. 1). Raghunath (defendant No. 1) is the son of Kalia Kanhu and Gelha (defendant No. 2) is the widow of Debraj, another son of Kalia Kanhu, who died in 1937. Jagannath's widow Subarni died in 1959. Hema (defendant No. 9) is the wife of plaintiff No. 1 and Radhakrishna (plaintiff No. 2) is the son of plaintiff No. 1. Plaintiffs' suit was one for partition of half interest in Schedules A, B and C properties of the plaint. While asking for partition they also challenged the validity of the sale deeds Ext. 2 dated 26-11-34 and Ext. J dated 20-1-36. Plaintiffs also asked for half share in the properties covered by Ext. H which were given to Subarni towards her maintenance and which defendant No. 1 alone appropriated. Items 14 and 16 to 22 of the B Schedule property were claimed to be the self-acquisition of defendant No. 1 purchased by him on 6-5-1940 for which no document has been filed and on 30-9-1956 by Ext. 6. Plaintiffs claim half share in these properties also. The defence case was that there was a partition by metes and bounds near about the year 1927. The acquisitions made by defendant No. 1 under Exts. J, H and 6 are valid and defendant No. 1 alone is exclusively entitled thereto. The properties referred to in Items 14 and 16 to 22 of the B Schedule of the plaint were acquired by defendant No. 1 on 6-5-1940 and 30-9-1956 and are his self-acquisitions and are not partible. The trial court found that there was a partition by metes and bounds in 1927 and that the suit for partition must fail. He, however, granted a decree for partition in respect of the properties covered by Ext. H as those properties were allotted to Sabarni towards her maintenance and on her death in 1959 both the plaintiffs and the defendants were entitled to divide the same. The trial court also found that defendant No. 1 would be entitled to the entire share of defendant No. 2 and he has acquired a title by adverse possession. Against the finding in respect of the properties covered by Ext. H, the defendants did not file any appeal or cross-objection in the High Court. The decision of the trial court is accordingly concluded so far as Ext. H is concerned. In other words, the subject-matter of Ext. H is liable to partition between the plaintiffs and the defendants. Being aggrieved by the judgment of the trial court, the plaintiffs carried an appeal to the High Court. The First Appeal was ultimately heard by our learned brother Justice B. K. Ray. He recorded the following findings :-

(2.) THE findings of the learned single Judge that there was no partition by metes and bounds near about 1927 and that there was severance of joint status amongst the parties 20 to 30 years prior to the suit were assailed before us in a somewhat luke-warm manner. After having gone through the evidence and having carefully heard the learned Advocates we are satisfied that those findings are unassailable and they are accordingly confirmed.