BHAGABEN PRADHAN Vs. DANDAPANI PRADHAN

JUDGEMENT

(1.) Plaintiffs are in appeal against the confirming judgments of the courts below dismissing the suit for partition and prayer for exercising right of pre-emption under S. 4 of the Partition Act.

(2.) Manguli, Sambari and Chakra were the three brothers. Plaintiffs 1 and 2 and late Ananta, father of defendants 1 and 2 represent the branch of Manguli. Defendants 3 to 6 being grandsons of Sambari represent that branch. Plaintiff's case is, although the three brothers of Manguli and others had been separated 35 years back, plaintiffs and the defendants continued to live jointly without any partition by metes and bounds. Since defendants 1 and 2 sold the land in dispute by registered sale-deed dated 29-1-1972 to defendants 3 to 6, grandsons of Sambari, the plaintiffs filed the suit claiming that defendants 3 to 6 being strangers to the family, defendants 1 and 2 should have offered the land for sale first to the plaintiffs as per the provisions of S. 4 of the Partition Act. The plaintiffs also claimed for partition by metes and bounds through Court. All the defendants filed a joint written statement claiming that there had been partition by metes and bounds among the three sons of Manguli and, therefore, question of pre-emption would not arise. So far as the sale in favour of defendants 3 to 6 is concerned, their case is, they being the grandsons of Sambari cannot be considered to be the strangers to the family.

(3.) Mr. R. K. Mohapatra, learned counsel for the appellants, strenuously urged that the courts below committed error in wrongly holding that there was a partition by metes and bounds, without considering the evidence on the side of the plaintiffs. It was further contended by Mr. Mohapatra that the finding of the lower appellate Court that there was a partition between the parties by drawing an inference from Exts. A and B, the sale-deed executed by the plaintiffs was wholly erroneous. Mr. R. K. Mohanty, learned counsel for the respondents, on the other hand, submitted that the concurrent findings of the courts below that there was a partition between the plaintiffs and the defendants should not be interfered in the second appeal. He also submitted that defendants 3 to 6 being agnatic relations of the plaintiffs, even though long since separated from them, they cannot be considered to be strangers to the family. The respective contentions be examined.