JABARDASTA PRADHAN Vs. NAROTTAM PADHAN & OTHERS

JUDGEMENT

(1.) The appellant in this appeal has called in question the judgment and decree passed by the learned Additional District Judge (F.T.C.), Bolangir in Title Suit No.8/4 of 2003-06 confirming the judgment and preliminary decree passed by the learned Civil Judge (Sr. Division), Bolangir in Title Suit No.8 of 1997.

(2.) The respondent nos.1 to 6 as the plaintiffs had filed the suit for partition of their properties. The appellant being the defendant no.1 with other defendants contested the suit pleading inter alia that there was a prior partition of the ancestral properties coming down from the hands of Markanda Padhan to the hands of his two sons namely Gaja Padhan and Bhuja Padhan and that there was a partition between Gaja Padhan on one hand and the sons of Bhuja Padhan on the other in respect of all the joint family movable and immovable properties. On this ground they resisted the prayer for partition in metes and bounds. They had also indicated that the property described in schedule 'A' of the written statement had been allotted to the share of Gaja and schedule 'B' properties were allotted to the members of the branch of Bhuja.

(3.) On the above rival pleadings the trial court has rightly taken up issue no.2 for decision that as to whether there was any prior partition of properties in metes and bounds. As it appears in the case with regard to prior partition except oral evidence, no documentary evidence had been let in by the defendants though the burden was on them to dispel the presumption against said partition in metes and bounds and in view of their specific case of prior partition. The certified copy of the record of right concerning the suit land reflects joint recording. Therefore, analyzing all these, the trial court had decreed the suit preliminarily.