KHIRA SAHUANI Vs. BAJI SAHU

JUDGEMENT

(1.) THE present respondent No.1, Baji Sahoo filed T.S. No.55 of 1975 in the Court of learned Sub -Judge, Berhampur claiming partition of the suit property and also for declaration that the registered sale deed, Ext.A executed by defendant No.2 in favour of defendant No.6 is invalid and void, the same being obtained by fraud. Defendant Nos.1, 3, 4 and 5 did not contest that suit and were set ex parte. Defendant No.2 supported the case of the plaintiff. The only contesting defendant was defendant No.6, who claimed to have purchased the suit property from defendant No.2 on payment of due consideration and to be in possession of that property. From the oral and documentary evidence produced by the parties, learned Trial Court came to the conclusion that there was partition in the family in the year 1922, where the predecessor of defendant No.2, namely, Gobinda Sahoo got a specific share, that the said property of Gobinda Sahoo was subsequently partitioned in the year 1967 by means of registered partition deed, Ext.F, that onus of proving partial partition and exclusion of the suit schedule properties from tha partition was on the plaintiff and the plaintiff could discharge the burden, that the sale deeds Exts. A and G in favour of defendant No.6 are genuine and for consideration and defendant No.6 are is in enjoyment of the properties described in Exts. A and G. Accordingly, learned Trial Court dismissed the suit of the plaintiff. The plaintiff carried appeal vide T.A. No.15 of 1983. Learned 2nd Additional District Judge, Berhampur, who heard and disposed of that appeal reversed the findings of the learned Trial Court on the issue of partition and held that the suit properties still continue to be joint and is liable to be partitioned. The said Court, however, confirmed the finding of the learned Trial Court that the sale deeds. Ext.A and G are valid and observed that defendant No.6 would get his right over the purchased property subject to the right of defendant No.2 after the partition. Aggrieved by the said judgment and decree of the learned 1st appellate Court, defendant No.6 has filed the present appeal.

(2.) THE appeal has been admitted to consider the following substantial question of law.

(3.) MR . Rath, learned counsel for the appellant at this juncture submits that although the learned 1st appellate Court accepted the above said legal proposition, it fell into error in relying on the oral evidence of the P.Ws. and concluding that the plaintiff successfully discharged the burden of dispelling presumption of complete partition and establishing that there was partial partition. He submits that the oral evidence is not permissible to rebut the contents of registered document of partition.