BALAKRUSHNA BEHERA Vs. KRUSHNA CH. TARAI AND OTHERS

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree passed by the learned Civil Judge (Sr. Division), Kendrapara in Title Appeal No.13 of 1985 setting aside the judgment and preliminary decree passed by the learned Munsif, Kendrapara in Title Suit No.137 of 1979. The appellant as the plaintiff has filed the suit for partition along with prayer for repurchase of the suit land under section 4 of the Partition Act. The trial court had simply decreed the suit preliminarily allotting half share over the suit plots to the plaintiff and accordingly directed for partition of the same. The respondent no.1 (defendant no.2) being aggrieved by the same, carried an appeal under section 96 of the Code of Civil Procedure. The appeal having been allowed and accordingly the judgment and preliminary decree as passed by the trial court having been set aside, the present second appeal under section 100 of the Code of Civil Procedure has been filed.

(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 trial court.

(3.) Plaintiff's case is that his father Bhanja Behera had another brother, namely, Mahani Behera and they are the two sons of Laxman. It is further pleaded that in the year 1943, Mahani sold the land measuring Ac.0.05 dec. from out of his share to his brother -Bhanja and since then Bhanja and after him the plaintiff remained in possession of the land extending to Ac.0.13 dec. It is next stated that only in the year 1979 the plaintiff came to know that defendant no.2 had purchased Ac.0.08 dec. of land from defendant nos.3, 4 and 5, claiming to have been owning the said property in view of purchase of the same in an auction sale made by the court in execution of a money decree against Mahani, the father of defendant no.1. It is further alleged that Mahani after sale of Ac.0.05 dec. of land to the father of the plaintiff had only Ac.0.03 dec. of land left in his share. The suit land is also said to be the undivided dwelling house of the family. Therefore, the plaintiff while seeking partition of the property has also sought for the relief of repurchase of the land so purchased by the defendant no.2 from the defendant nos.3, 4 and 5.