KRISHNA CHANDRA PATI Vs. HEMANTA KUMAR PATI

JUDGEMENT

(1.) Defendant No. 4 is in appeal against the Judgment and decree passed by Learned Civil Judge (Senior Division), Keonjhar in Title Suit No. 65 of 1995.

(2.) THE present Respondent No. 1 as Plaintiff filed that suit for partition of the properties of his father -Balaram Pati (Respondent No. 2) and for allotment of his share in the same. The case of the Plaintiff in brief was that his grand father -Harihar Pati being the only son inherited the coparcenary ancestral property from his father -Nandu Pati. Harihar died in the year 1973 leaving behind two sons, namely, Balaram (Defendant No. 1) and Krishna (Defendant No. 4) and four daughters, namely, Subhadra, Bilashini (D -18), Laxmi (D -19) and Rebati (D -20). During the life time of Harihar, there was an amicable partition of the coparcenary property in the year 1971 wherein Harihar for himself and widowed daughter -Subhadra kept some properties and divided the rest of the coparcenary properties between the two sons -Balarma and Krishna and each of those sons enjoyed his respective share and Balaram sold several pieces of lands out of his share to different persons. Those purchasers were Defendant Nos. 5 to 16 and 21 to 23. The Plaintiff's claim is that in the shares given to Defendant No. 1 in the partition of 1971, the Plaintiff and each of Defendant Nos. 1 to 3 have 1/4th share, but Defendant No. 3 is not willing for amicable partition, therefore, he filed the suit for partition of the suit property described in Schedule -A of the plaint and allotment of 1/4th share to him. Defendant Nos. 1 to 3 filed a written statement wherein they indirectly supported the case of the Plaintiff. Defendant No. 15 filed written statement simply alleging that the suit is not maintainable. Defendant No. 17 also took the same plea. Defendant Nos. 7 to 12, the purchasers filed written statement indicating therein that they have no objection to the proposed partition, if their respective shares are carved out in their favour. Defendant Nos. 16 and 20 in the written statement claimed that there was no partition by metes and bounds in 1971 and so the property of late Harihar be partitioned and in that partition the shares to daughters -Defendant Nos. 18 to 20 be given. Defendant No. 21 simply asked for carving out the properties which were purchased by him. Defendant No. 4 actually contested the suit pleading inter alia that there was never any partition by metes and bounds between Harihar, Balaram, Krishna and that the allotment sheet prepared in 1971 was never acted upon, that in order of accommodate Defendant No. 1, who was in dire need of money, he signed on sale deeds, documents and petitions according to instruction of Defendant No. 1. He also pleaded that the suit is not maintainable due to want of cause of action and also for non -joinder and mis -joinder of necessary parties. Defendant No. 4, accordingly prayed for dismissal of the suit and also made a counter claim for partition of the coparcenary property of his father -Harihar.

(3.) FROM the pleadings of the parties, the Trial Court framed the following eight issues: (i) Is the suit maintainable? (ii) Is there any cause of action to bring the suit? (iii) Whether the suit is bad for non -joinder of necessary parties? (iv) Whether the suit is bad for non inclusion of properties? (v) Whether the suit is bad for misc. joinder of necessary parties? (vi) Whether there was previous partition? (vii) Whether the 'A' Schedule land is liable for partition? (viii) To what relief, if any, the Plaintiff (s) are entitled to? The Plaintiff examined eight witnesses including himself and produced documents, which were marked as Exts. 1 to 32. Defendants examined three witnesses Defendant No. 1 being D.W.1 and Defendant No. 4 being D.W.2. Defendant No. 1 produced documents, which were marked as Exts. A to R, Defendant No. 4 produced documents, which were marked as Exts. A -1 to D -1. The Court also admitted one Xerox copy of the petition filed by late Harihar Pati and Panchayat Faisal as Court's documents and marked it as Ext -X. On consideration of all these evidence, the Trial Court came to the conclusion that there was a partition between Harihar and his two sons and that Defendant Nos. 1 and 4 got their respective shares in the partition and enjoyed such shares exclusively, that the Plaintiff and each of Defendant Nos. 1 to 3 have 1/4th share in the suit schedule property, which fell to the share of Defendant No. 1 in the partition of 1971, that there was cause of action for the suit, that the suit did not suffer from non -joinder or misjoinder of necessary party, the Court accordingly granted preliminary decree for partition of the suit property and allotment of 1/4th share to the Plaintiff and 1/4th share to each of Defendant Nos. 1 to 3 in the same. Unhappy with the said Judgment and decree Defendant No. 4 has filed this appeal.