PRAVAL CHANDRA PATTNAIK Vs. SARAT CHANDRA PATTNAIK

JUDGEMENT

(1.) This first appeal is directed against the judgment and decree dated 11-5-2001 and 3-7-2001 respectively passed by the learned Civil Judge (Senior Division), Baripada in Title Suit No. 189 of 1994.

(2.) The facts of the case are as follows : Respondent No. 1 as plaintiff filed the suit for partition of the properties as per Sched- ules-B to E of the plaint and for a decree for future rent in respect of the building situated over the suit land as described in Schedules-B and E of the plaint. The case of the plaintiff was that plaintiff and defendant No. 1 are brothers, defendant Nos. 4 and 5 are their sisters, defendant Nos. 2 and 3 are the sons of defendant No. 1. Krushna, the father of the plaintiff and defendant Nos. 1, 4 and 5 died in the year 1991 while living jointly with his sons. There has been no partition of the suit properties by metes and bounds. The plaintiff retired from his service as Senior Deputy Superintendent of Police in the year 1990. The wife of the plaintiff got some landed properties at Kaptipada from her father and the plaintiff constructed a house over the said land from out of his income. Defendant No. 1 was getting Rs. 1,000/- towards rent from the tenants of the joint family house. Those houses are joint family property and the plaintiff is entitled to Rs. 416/- on account of rent from defendants in future and defendant Nos. 1 to 3 are in possession of the suit property on behalf of the plaintiff and defendant Nos. 4 and 5. As defendant No. 1 avoided the request of the plaintiff or amicable partition of the suit properties, the plaintiff filed the suit. Defendant Nos. 1 and 2 in their joint written statement pleaded that plaintiff had no cause of action and suit was barred by limitation. They also pleaded misjoinder, and non-joinder of parties. It was further pleaded that the plaintiff constructed a house at Kaptipada by taking substantial financial help from the joint family properties. Further, in the year 1977 the plaintiff relinquished his share in the joint family properties by making a declaration to that effect in presence of the father and other family members. After the said declaration, defendant No. 1 renovated the old house by investing huge amount and also added some new construction to the old building. The house has not been let out to anybody. Hence, the plaintiff was not entitled to get anything from the said house. Defendant Nos. 3 and 4 in their separate written statement supported the plea advanced by defendant Nos. 1 and 2. Defendant No. 5 was set ex parte.

(3.) Both the parties adduced oral as well as documentary evidence in support of their pleadings. On the pleadings, the learned Civil Judge framed as may as eight issues which are as follows : 1. Has the plaintiff got any cause of action? 2. Is the suit as laid is maintainable: 3. Is the suit bad for waiver, acquiescence and estoppel ? 4. Is the suit barred by law of limitation ? 5. Is the suit bad for non-joinder and misjoinder of the parties ? 6. To what relief or reliefs, if any, the plaintiff is entitled in law and equity ? 7. Whether the suit properties are liable for partition ? 8. Whether the plaintiff has relinquished his interest over the suit properties ? After analysing the materials and evidence available on record, the Court below has given the following findings on the above issues. 1. There was no prior partition and thus the suit property was liable to be partitioned. 2. The defendant failed to prove that the plaintiff has waived or acquired his right over any portion of the suit property, and 3. There was no evidence regarding induction of any tenant in the suit house at Baripada by the defendants and payment of any rent by them. Therefore, the plaintiff was not entitled to a decree for future rent and he was entitled to the relief of partition of the suit house.