BANSHIDHAR BEHERA Vs. BHANI DEI

JUDGEMENT

(1.) LUXMAN Behera and Bida Behera were brothers. Luxman died in about 1910 leaving behind four daughters--Ani (defendant-2), Bhani (Plaintiff), Jatri (defendant-3) and Gura (who died long ago ). The entire disputed land consists of about 17 acres and is described in Schedule Ka of the plaint. Schedule Kha is 2. 69 acres and is a part of Schedule Ka. Schedule Ga constitutes a part of Schedule kha. Plaintiff's suit was for partition of Ka schedule property amongst the sisters in three equal shares excluding Kha schedule property, for declaration of title to Kha schedule property, for confirmation of possession of the Ga schedule property and for recovery of possession of Ka schedule property excluding Ga schedule. Defendant-1 if the natural born sou of Bida Behera. Defendants 1 (ka) to 1 (gha)are the sons of defendant-1. Plaintiffs case is that at the time of death of Luxman, she and her sisters were minon and the suit properties were looked after by Bida Behera who performed the marriage of the last two daughters and remarriages of all the four daughters. Bida Behera got the disputed properties fraudulently recorded in the name of defendant-1 in the settlement of 1322 V. S. (1915 ). Till remarriage the sisters were living in the residential house of Luxman and were enjoying the produce of the land. After their remarriage they used to get their sharei of the produce of the land from Bida Behera and, after his death, from defendant 1. Sometime after her remarriage plaintiff came to reside in the village of her father and constructed a house upon Ga schedule land and is residing in that house for the last 30 years. In 1953 plaintiff's husband wanted to cultivate the suit land personally, but defen-dant-1 obstructed him from doing so. Thereupon she filed an application before the Mutation Officer for recording Kha schedule property in her name as it was given to her by her father as dowery at the time of her marriage. The Mutation Officer partly allowed her claim. In appeal, the mutation petition was dismissed. Hence the suit.

(2.) DEFENDANTS 2 and 3 supported the case of the plaintiff in toto. Defendant-1 contested the suit alleging that Luxman adopted him and the disputed properties were recorded in his name in the settlement of 1322 V. S. as the son of Luxman. His natural father Bida Behera cultivated the disputed lands on his behalf and defendant-1 is cultivating the same after his father's death. Bida behera performed the marriages of two sisters and the remarriages of all as it was the duty of defendant-1 to perform the marriage as a brother. No part of the produce of the land was ever given to the plaintiff or to her sisters and defendant1 was not in permissive possession on behalf of the sisters. On account of the poverty striken condition of the plaintiff defendant-1 got a house constructed on ga schedule property and allowed her to reside therein.

(3.) THE learned Subordinate Judge recorded the following findings