KARUNAKAR LENKA Vs. BABAJI CHARAN LENKA

JUDGEMENT

(1.) THIS is an appeal by some of the defendants against the judgment and decree passed by the learned Subordinate Judge, Jagatsinghpur in Title Suit No. 143 of 1973. The respondent Nos. 1 and 2 as plainiiffs filed that suit for partition of the suit properties and allotment of 1/2 share in the Schedule 'A' and 'B' properties, 1/4th share in Schedule 'C properties and also for allotment of Ac.0.08 dec. out of Schedule 'D' properties of the plaint.

(2.) THE plaintiffs' case, in brief, was that the plaintiffs and defendants 1 to 8 are all descendants of the common ancestor Manguli Lenka, who died in a state of jointness with his two sons Bisuni and Dhuli about 40 years before filing of the suit. After death of Manguli, Bisuni and Dhuli remained in jointness and Bisuni being the elder brother acted as manager and 'karta' of the joint family. Dhuli died some times in 1950 leaving the plaintiffs as his heirs. Since plaintiff No. 1 was a child and plaintiff No. 2 is a paradanashin illiterate lady, defendant No. 2, was assisting them in day to day affairs. It was alleged by the plaintiffs that taking advantage of such a situation, defendant No. 2 in collusion with his father, Bisuni manipulated some documents describing himself as adopted son of Dhuli Lenka, although there was no such adoption. The plaintiffs specifically pleaded that Schedules A, B, C and D properties of the plaint belong to the joint family and it has never been partitioned by metes and bounds although parties are possessing portions of these lands for convenience. It was further alleged that since the defendants 1 to 8 created trouble in the possession of the plaintiffs over the properties and declined the request of the plaintiffs to effect partition of the suit properties by metes and bounds, they had to file the suit for partition.

(3.) DEFENDANT No. 2 filed separate written statement admitting the averments made by the plaintiffs in paragraphs 2,3,4, 6 and 7 of the plaint but claiming, inter alia, that he is the adopted son of Dhuli Lenka. He denied the allegations that the documents relating to adoption are fake and fabricated or that they were snatched from the plaintiff No. 2 taking advantage of her illiteracy. Defendant No. 2 also pleaded that the properties mentioned in the Schedules of the plaint were acquired by joint family in the name of different members of the joint family with the aid of joint family nucleus.