MURALIDHAR BHOI Vs. SHYAM SUNDAR BHOI & OTHERS

JUDGEMENT

(1.) The plaintiff no. 1 of the Title Suit No. 74 of 1984 in the Court of Sub-ordinate Court, Bolangir (as it was then) has filed this appeal under section 100 of the Code of Civil Procedure questioning the legality of the judgment passed by the learned District Judge, Bolangir in Title Appeal No. 10 of 1991 remanding the suit for partition for disposal afresh.

(2.) For the sake of convenience as also to avoid confusion and bring in clarity, the parties hereinafter have been described as per their position and as arraigned in the trial court.

(3.) Case of the plaintiff is that the parties are the members of Scheduled Tribe being 'Gond' by caste and are governed by the old Hindu Law as such since the provision of Hindu Succession Act etc are not applicable to them. One Sira Bhoi was the common ancestor of the parties. He had two sons namely, Mukunda and Kapur. They possessed the property left by Sira and in course of time effected a partition and accordingly, remained in separate possession and enjoyment of the land falling to their respective shares. It is stated that in the said partition which took place after the death of Sira, the suit land in Schedule A stood allotted to Mukunda who remained in exclusive possession of the same as of his share being the rightful owner. Mukunda died leaving behind his son Iswar, the plaintiff no. 1 and Balun who accordingly possessed the land which was being possessed by their father. Iswar and Balun had partitioned the properties and had become separate in mess and estate. The land in Schedule A is said to be consisting of the share of land falling to Iswar and a small patch of land purchased by Iswar in the name of his grandson, Madhusudan (son of Balun). Iswar is said to have been in cultivating possession of the suit schedule A land till his death in the year 1978. Iswar's son Raghu had pre-deceased him leaving behind his widow, the plaintiff no. 2 and sons, the plaintiff no. 3 to 5. Thus, the plaintiffs claim to be the successors of Iswar along with defendant no. 1 and his children, the defendant no. 2 to 5. It is their case that they remained in possession of Schedule A land for convenience. Since dissention arose, the plaintiffs demanded complete partition of the properties and then the defendant no. 1 went on deferring the matter on some pretext or other. As ultimately no partition was amicably made; they filed the suit claiming the said relief.