JASODA MOHANTY Vs. HARISH CHANDRA MOHANTY

JUDGEMENT

(1.) Unsuccessful plaintiffs are in appeal against the judgment and decree of the learned Subordinate Judge, Karanjia (as he was designated then) dismissing the suit for petition simpliciter,

(2.) PLAINTIFFS case may briefly be stated thus: Udayanath Mohanty, common ancestor of plaintiffs and defendant No. 1, died sometime in 1948 leaving behind his widow, defendant No. 2 and two sons, namely. Purna and Harish, defendant No. 1. Purna died on 14 -11 -1957 leaving behind his widow Yasoda. plaintiff No. 1 and daughter Sukanti, plaintiff No. 2. Total extent of lands possessed by Udayanath are set out in Schedule -B of the plaint. According to plaintiffs, item Nos. 1, 2 and 3 were ancestral properties and item No. 4 was the self -acquired property of Udayanath. So far as item No. 3 is concerned, though the sale deed stands in the name of Kamala, defendant No. 2, it was acquired fay Udayanath out of joint family funds defendant No. 2 having no independent source of income to acquire the said property. As to item No, 5, the same was obtained by exchange with one Harihar Misra and after having acquired the same, Udayanath constructed his house thereon and resided there with his family. On his death the said residential, house was possessed by his two sons and his widow, defendant No. 2 and now the same is under possession of defendants 1 and 2 only. . After death of Puma, defendant No, 1 intending to grab all the properties did not treat the plaintiffs well. So after marriage of plaintiff No. 2, plaintiff No. 1 has been residing sometimes in her father's house and sometimes with her daughter. The further case of the plaintiffs is that defendant No. 2 in whose name property under item No. 3 of the schedule was acquired, disposed of the said property by way of gift to her son defendant No. 1, but since the acquisition was out of joint family funds, they are entitled to a share in it. As regards item No. 6, their case is that defendant No. 1 in the meantime has sold away the same to defendant No. 3 and this transfer being without their knowledge and consent will not bind their interest therein. It is asserted by the. plaintiffs that in whole of the suit properties Purna's one -third share devolved upon them and to carve out their interest they requested the defendants for amicable partition and the same having been turned down, they filed the present suit. Further case of the plaintiffs is that the joint family possessed of the house as per Schedule -C and movables as per Schedule -D of the plaint and all the moveable and immovable properties should be equally partitioned between them and defendants 1 and 2 according to their share.

(3.) THE learned Subordinate Judge though framed as many as 12 issues, but in view of the pleadings of the parties, ,the main issues are - (1) Is the suit barred by law of limitation? (2) Is the suit for partial partition maintainable ? (3) Whether Purna died in the year 1957 (wrong y mentioned in the impugned judgment as 1951) or in 1955 ? (4) Whether the property mentioned in item No. 3 of Schedule -B is the self -acquired property of defendant No. 2 ? (5) Whether the plaintiffs are entitled to a share in the property in item No. 5 of Schedule -B ? (6) Whether the sale of property in item No. 6 was for legal necessity of the family ? (7) Whether defendants 1 and 2 have perfected their title by adeverse possession? (8) Whether the plaintiffs are entitled to one -third share in the suit properties as claimed ?