SRI BHAGABATA MOHANTY Vs. SRI KHAGENDRA MOHANTY

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Balasore in Title Appeal No. 11 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Nilgiri in Title Suit No. 17 of 1993 in dismissing the suit filed by the present appellants as the plaintiffs.

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

(3.) Plaintiff's case is that the property described in schedule 'Kha' of the plaint is the ancestral properties of the parties. One Kanehi was their common ancestor. He died leaving behind his two sons namely, Faka and Raghu. It is stated that Faka and Raghu were living separately prior to their death. Though there was no partition in metes and bounds, Faka and Raghu having 10 manas of ancestral property and they were getting around four manas of paddy as surplus after meeting the expenditure of the agricultural as well as for the family. They had a grocery shop over the ancestral property and were managing the same jointly. Raghu is said to be acting as the karta of the family as Faka was remaining outside being in police service till 1942. Raghu on 16.11.1938 got the permanent lease in respect of lot No. 2 property under schedule Kha of the plaint and it is stated that the same was received on lease utilizing the surplus income of the joint family and the salami for the same was also being paid from out of it so also the rent. Thus it is stated that the suit property is also the joint family property and it was being treated as such and remained in possession of the plaintiffs (legal heirs of Faka) as well as the defendants (legal heirs of Raghu). It is alleged that Raghu was looking after the property during the last major settlement on his behalf as also on behalf of the Faka and he got this lot no 2 property's property the rent schedule prepared in his name exclusively. In view of that, the defendants threatened the plaintiffs with dispossession from out of lot No. 2 property which was recorded in the name of Raghu in Suo Moto Case No. 755 of 1978. The plaintiffs then obtained the certified copy of the said case on 23.03.93 and came to know about it for the first time. It is stated that the said land ought to have been recorded jointly. So they claim half share over the lot no 2 property. Lot No. 1 property is said to be the ancestral homestead land of the parties. It is further asserted that Raghu damaged his portion of ancestral house standing over lot No. 1 and stayed in village Nijgarh after constructing a house since 10 years prior to his death. The said properties stand recorded jointly in the name of Faka and Raghu with the right of Chandana in the major settlement. But as Raghu has not taken care of the house over the ancestral homestead i.e. lot No. 1 property and left the place, the plaintiffs requested him for partition of all the properties. The defendants having declined to accept the said request, the suit for partition came to be filed.