LINGRAJ MISRA Vs. ANANTA MISRA

JUDGEMENT

(1.) THIS first appeal has been filed by the plaintiff against the judgment and decree dated 21-3-1949 of Sri R. C. Misra, Subordinate Judge of Berhampur, in a suit where the main prayer is for partition of the properties described in Schedules A to j. One Gopinath Misra had three sons, Pandabo, Bacho and Agadhu. Plaintiff lingaraj is the son of Agadhu. His younger brother Banamali died sometime in the year 1938-39. Ananta (defendant 1), who was the natural born son of Agadhu, was adopted by pandaoo. There is no dispute about this adoption. Bacho died leaving behind two sons Mukunda and Madano (defendants 6 and 7 respectively ). Defendants 2 to 5 are the sons of defendant 1. Defendants 6 and 7 and 8 to 11 are impleaded in the suit as they have got interests in the properties described in Schedules D and E only. The other defendants are subsequent alienees in respect of some items of properties in suit.

(2.) THE main contest in the suit is as between plaintiff Lingaraj and defendant 1 ananta. The plaintiff's versions of the case are that on 26-11-1920 his father agadhu, defendant 1 Ananta and defendants 6 and 7 effected a partition of the family properties and executed a registered deed amongst themselves. AS per the deed of partition, which is Ex. A in the present case, A schedule properties were allotted to the share of Agadhu, the properties mentioned in B schedule of the plaint (which is equivalent to Sen. C of the deed of partition) fell to the share of defendant 1 Ananta, and the properties described in Sen. B of Ex. A lofl to the share of defendants 6 and 7. Some other properties were left joint. Even though defendants 6 and 7 separated completely from the plaintiff's father and defendant 1 and separately enjoyed the properties allotted to them, the plaintiff's father Agadhu, plaintiff Lingaraj, his younger brother Banamali, and defendant 1 Ananta were living together and jointly enjoyed the properties in accordance with the terms of the deed of partition. The plaintiff's father Agadhu died sometime in the year 1925. During the time when the plaintiff, defendant 1 and Banamali were living together and enjoying the properties jointly, defendant 1 Ananta was the Karta in charge of the management of the properties and several items of properties were also acquired from out of the joint funds and with the joint efforts of both plaintiff and defendant 1. These subsequently acquired properties, therefore, according to the plaintiff, are joint family properties liable to be partitioned along with other properties. The further story of the plaintiff is that it was in the year 1941 that the plaintiff and defendant 1 separated in mess and residence, and, as such, there was a severance of interest. But there having been no partition by metes and bounds, he has prayed for partition of the properties scheduled in the plaint.

(3.) THE defence, on the contrary, is that there was an agreement amongst the three branches, that is, Agadhu, defendant 1 and defendants 6 and 7, to partition the joint family properties into three equal shares; subsequently there was a partition of moveables on the basis of Ex. C dated 10-7-1916. In November 1920 there was a completed partition by metes and bounds after which the parties are separately possessing their properties. The subsequent acquisitions by the Kabalas are the self-acquisitions of defendant 1. The defence version therefore is two-fold: (i) that the partition suit is liable to be dismissed on account of a previous partition by metes and bounds, and (ii) that at any rate the subsequent acquisitions, which are fully described in several Hems in schedule G and in eight items in Schedule F are the self-acquisitions of defendant 1, and, as such, they are not liable to be partitioned.