LINGARAJ SARAF Vs. AKHAYA KUMAR SARAF

JUDGEMENT

(1.) This is an appeal by defendant No. 1 against the judgment and decree of the learned Subordinate Judge, Bhawanipatna in T.S. No. 11 of 1975 filed by Respondents Nos. 1 to 3 as plaintiffs for declaration of their right, title and interest over the Schedule 'B' lands and confirmation of possession or in the alternative for recovery of possession of the same.

(2.) ONE Hari Saraf had two sons, namely; Sitaram and Jata. The plaintiffs are the sons and legal heirs of late Sitaram. Defendant No. 1 and late Sadhu were the sons of Jata. Defendant No. 2 is the son of late Sadhu. The case of the plaintiffs in essence was that in the year 1934 -35 Sitaram acquired Ac.25.92 decimals of land appertaining to Khata No. 17/2 in village Sarasguda and another piece of land measuring Ac.0.64 dec. in the name of Late Sadhu. He also acquired some more land in village Chichia and all those lands were treated as joint family properties. According to the plaintiffs, in the year 1937 there was a family partition between Sitaram in one hand and the sons of Jata on the other hand wherein Sitaram retained the lands situated in village Chichia towards his share while Lingaraj and Sadhu got the lands in village Sarasguda as their share and accordingly, Sitaram remained in possession of Schedule -B lands whereas defendants remained in possession of Schedule -A land noted in the plaint. But during settlement operation as Sitaram was old and ailing and the plaintiffs were minors, defendant No. 1 was looking after the settlement operation and taking advantage of the situation he got his name recorded in respect of the Schedule -B land and thereafter threatened to disturb the possession of the plaintiffs over that land, for which they had to file the suit seeking the above mentioned reliefs.

(3.) DEFENDANT No. 2 got himself impleaded as a party by filing a petition under Order 10, Rule 1, C.P.C. He filed separate written statement pleading therein that there was never any partition in the family at any time and that the family still continues to be joint. He claimed that his father Late Sadhu being one of the sons of Jata had a share in the family property and accordingly, he is entitled to 1/4th share in the entire family property.