BHASKAR SAHU Vs. ANAMA SWARA

JUDGEMENT

(1.) Defendant 1 in Title suit No. 23/70 of the Court of the Subordinate Judge, Berhampur is the appellant in this appeal. The suit is one for division of the suit properties in two equal shares and allotting one such share to the plaintiff.

(2.) The plaintiff's case as stated in the plaint is that one Agadhu Kavi Ratna and one Lakshman Padhi constitute a joint Hindu Mitakshara family and the said family possessed ancestral as well as self-acquired properties. Agadhu Kavi Ratna died in or about the year 1980 and Lakshman Padhi died in, the year 1939. After the death of Lakshman differences arose among the members of the joint family and the two branches represented by their respective successors became divided in status partitioning amicably the moveables possessed by the joint family between themselves half and half. There was no partition of the residential houses and the two branches used to occupy different portions thereof by mutual arrangement. The other lands belonging to the family were not partitioned by metes and bounds and each branch was possessing portions thereof more or less proportionate to their shares. Defendants 2 to 7 are the successors of the branch of Agadhu Kavi Ratna whereas defendant 8 is the sole survivor of the branch of Lakshman. During the amicable arrangement in the matter of cultivation and enjoyment of the properties, disputes arose between the two branches as a consequence of which Bhagirathi Padhi, father of defendants 3 and 4 instituted, T. S.No. 46 of 1955 in the Court of the Subordinate Judge, Berhampur, for partition. The said suit was decreed directing division of the joint family properties in two equal shares allotting one to each of the branches. Defendant 8, the son of Lakshman Padhi, carried up the matter in appeal which was dismissed on merits confirming the judgement and decree passed by the trial Court. It has been alleged in the plaint that the final decree proceeding in the said suit was still pending at the time of institution of the present suit and, therefore, the state of affairs in the matter of possession of the properties had been continuing as before.

(3.) The suit land bearing survey No. 498/3 of village Ladhi measuring A.0.19 cents had not been included in the schedule of properties sought to be divided in the aforesaid suit. According to the plaintiff the said item of property did exclusively belong to and possessed by defendant 8 being the self-acquired and separate properties of his father late Lakshman Padhi for which the same was excluded in the aforesaid suit. The plaintiff purchased the said item of properties from defendant 8 under Ext. 4 dt. 31-7-62 for a consideration of Rs. 1500/- in pursuance to which the plaintiff was put in possession of the properties so conveyed. On the day following the sale deed defendant 1 asserted his title to the suit land saying that he is a purchaser of the said properties from Shyamsundar Padhi and his son Rajanikanta Padhi (defendant 4) and has acquired full title thereof. According to him, the said properties were the self acquired properties of Shyamsundar Padhi and not of Brajamohan Padhi (defendant 8). The plaintiff thereafter approached Shyamsundar Padhi who told him that it was not the exclusive property of Brajamohan Padhi but it was jointly purchased by him and late Lakshman Padhi under a sale deed dt. 28-9-1934 from one Biswambar Padhi of Lathi. Shyamsundar Padhi, however, assured the plaintiff that since Brajamohan Padhi is undoubtedly entitled to half of the said property he would intervene and settle up the matter amicably. Pursuant to such assurance the plaintiff was allowed to possess and enjoy half of the suit land and it was settled that a deed of partition, would be executed between the plaintiff and defendant 1 dividing the properties half and half to avoid any future dispute with respect to the title of each of the parties to the suit land. The cause of the suit arose while defendant 1 evaded execution of the partition deed on some plea or other and the plaintiff in this suit has prayed for dividing the suit properties half and half allotting one of the shares to him.