PRAHALLAD CH MOHANTY Vs. SURENDRA NATH MOHANTY

JUDGEMENT

(1.) DEFENDANT Nos. 12 and 13 have filed this appeal against the judgment and decree of learned 1st Additional District Judge, cuttack in Title Appeal No. 66 of 1994 reversing the judgment and decree passed by learned Civil Judge (Sr. Division), Jagatsinghpur in Title Suit No. 89 of 1987.

(2.) THE present respondent No. 1 as plaintiff filed the above noted suit with a pleading that suit Schedules 'a' and 'b' properties are the joint family properties of the plaintiff and defendant Nos. 1 to 11, but Sebati, the wife of Birakishore, sold a part of the dwelling house of joint family described in schedule 'c' of the plaint to defendants 12 and 13 without any legal necessity and without the consent of the plaintiff, although defendants 12 and 13 being strangers to the family were not entitled to joint possession of the dwelling house. He prayed for partition of properties of the joint family, allotment of his share and a liberty to repurchase the schedule 'c' property as per Section 4 (1) of the Partition Act from the stranger-purchasers. The defendants contested the suit pleading inter alia that there was a prior partition between Narahari and sons of Lokanath and the house sold by Sebati to defendants 12 and 13 fell to the share of Narahari in that partition. Sebati being the daughter-in-law and the sole heir of Narahari sold the suit house to defendants 12 and 13 for legal necessity and those purchasers constructed house and lived there. It was also pleaded by the defendants that Narahari had alone purchased schedule 'b' land and the plaintiff has no right over the same. They specifically pleaded that as there had been a prior partition the plaintiff is not entitled to claim partition.

(3.) FROM the pleadings of the parties, learned trial Court framed as many as 9 issues and on consideration of the evidence of the parties concluded that there was a prior partition between Narahari and sons of Lokanath, that Schedule 'b' property was not acquired out of joint family income, that the Plot No. 502 and the house there on was not the joint property and the purchasers are in possession of the same; that plaintiff is not entitled to decree of repurchase of the house under the provision of Section 4 of the Partition Act; that the plaintiff having not challenged the validity of the sale deed cannot maintain his right of preemption. With such findings learned trial Court dismissed the suit of the plaintiff. The plaintiff carried appeal and the first appellate Court in the above noted title appeal reversed the judgment and decree of the trial Court with the findings that though there was a partition in the year 1935 in the family, the same was not complete one and that there was no previous partition by metes and bounds; that Sabik Plot Nos. 431, 502, 504, 505, 506 and 510 are liable for partition; that there was no right of preemption of the plaintiff over Plot No. 509. In consequence, plaintiff was allowed to enforce his right of preemption only in respect of Sabik Plot Nos. 431, 502, 504, 505, 506 and 510 and defendants 12 and 13 were directed to resell the land purchased under Exts. H and J to the plaintiff. Aggrieved by the said judgment and decree defendants 12 and 13 have preferred the present appeal and plaintiff-respondent no. 1 has also filed the cross-objection praying for declaration that Schedule 'b' property is liable for partition and the plaintiff is entitled to pre-emption in respect of the suit property.