KAMALA MUNDANI Vs. GANDARAM MUNDA

JUDGEMENT

(1.) This is a plaintiffs' second appeal from the reversing decision of the District Judge, Balangir-Kalahandi dated 20-11-73 passed in Title Appeal No. 54 of 1971. Plaintiffs filed the suit for division of the suit lands into four equal shares and for allotment of one such share each to plaintiff no. 1, plaintiff no. 3, defendant no. 1 and defendant no. 2.

(2.) Plaintiffs and defendants are members of one family as will appear from the following genealogy : The suit land is 7.22 acres appertaining to holding no. 8 in mouza Mahammadpur and admittedly belonged to Tiknu and on his death it constituted ancestral property in the hands of his successors in interest. There is no dispute now that Kandri, widow of Tiknu, died some time before 1936 when last record-of-rights in respect of the suit land was prepared. In this record-of-rights, Ghungi's name was solely recorded in respect of the suit land. While claiming partition, the plaintiffs explained this recording on the ground that as Bethi system was in vogue in the area, they purposely allowed one name of the family to be recorded in respect of the suit land so that the other members would escape the rigors of that Bethi system. Thus, the plaintiffs' case was a simple suit for partition.

(3.) Defendant no. 2 fully supported the case of the plaintiffs. Defendant no. 1 alone contested the suit. His case is that his father Kunu married his mother Ghungi, the eldest daughter of the last propositus Tiknu, and remained in his father-in-law's house as the allatom son-in-law. Upon the death of Kandri, widow of Tiknu, Ghungi succeeded to the suit land as her mother's heir, and possessed the same in her own right, title and interest to the exclusion of her sisters. After Ghungi's death, her husband Kunu also remained in exclusive, long, continuous and peaceful possession of the suit land. Thus, Ghungi and Kunu having acquired title to the suit land by ouster of the co-sharers, he is the sole owner of the same and the suit land is, therefore, not liable to partition. The members of the other branch of the family have lost their interest by being out of possession of the suit land for more than 12 years. In 1936 settlement, Ghungi's name was solely recorded in respect of the suit land indicating thereby the exclusive title and possession of her. It is also the defence case that the original plaintiff no. 3 and plaintiff no. 1 executed a deed of relinquishment in favour of Ghungi, mother of defendant no. 1, in the year 1948. On this ground also, the plaintiffs cannot claim partition of the suit land.