GOPAL CHARAN @ GOPAL BISWAL Vs. KAMADEV MALLICK

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Jajpur in Title Appeal No. 34 of 1994 setting aside the judgment and decree passed by the learned Civil Judge (Junior Division), Jajpur in T.S. No. 366 of 1989. The appellant as the plaintiff had filed the suit for partition of the land measuring Ac0.07 decimals under plot no. 1899 khata no.110 of mouza Kelanga and claiming allotment of eastern side portion of the land extending to Ac0.01 decimals 7 1/2 links to him towards the share of his vendor. The suit having been decreed granting relief to the appellant -plaintiff under section 4 of the Partition Act to repurchase the said land from the defendant -respondent no.2, the appeal had been filed by the aggrieved plaintiff. The appeal and the suit for partition having been allowed, the present Second Appeal has been filed by the un -successful defendant no.2. He having died during pendency of this appeal, his legal representatives are pursuing the appeal.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.

(3.) Plaintiff's case is that originally the suit recorded in the name of Netrananda Biswal. He died leaving behind his three sons, namely, Nityananda; defendant no.1, Gopal; defendant no.2 and Govinda who is the father of defendant nos. 3 to 5. It is stated that the ancestral dwelling house of the plaintiff is situated adjoining the suit land on its eastern side. The suit land on a particular portion adjoins the ancestral land of the plaintiff extending to Ac0.01 decimals 7 1/2 link was lying vacant. In the year 1969, the plaintiff with his co - sharers had partitioned his own homestead land and the dwelling house. At that time it was detected that the ancestral dwelling house with the cowshed of the plaintiff's family was covering a portion of land measuring Ac0.01 decimals 7 1/2 links of the land owned by Netrananda. It is stated that said land was thus in possession of the plaintiff's father and thereafter with the plaintiff. When this fact came to light, the defendant no.1 and Govinda agreed to sell the said land in favour of the plaintiff. So, a registered sale deed was executed on 25.06.1969 on receipt of agreed consideration. The suit land was accordingly mutated in the name of the plaintiff on the strength of said purchase. It is alleged that some time during the month of December, 1989, defendant no.2 created disturbance in possession of the plaintiff over the suit land. So, the suit for partition had to be filed by the plaintiff so as to avoid any such unpleasant situation and dispute in future.