DIJABARA MALLIK Vs. BAIDHAR MALLIK

JUDGEMENT

(1.) This First Appeal has been filed by the Defendants -Appellants against the Judgment and decree dated 27.8.1981 and 10.9.1981 respectively passed by the Learned Sub -Judge, 2nd Court, Cuttack in Title Suit No. 263 of 1977. Respondents as the Plaintiffs had filed the suit for partition of Schedules 'B' and 'C property.

(2.) THE facts of the case are as follows: Rahasa Mallik, the common ancestor of the parties had two sons. They are, Abhina Mallik and Babana Mallik. Abina died in the year 1946. His sons are, Achuti and Sankar. Sankar died issueless and Achuti predeceased his father Abhina. Achuti had three sons, namely, Batakrushna, Dijabara, Birabara and a daughter, Nisi. His widow Radhi Bewa died in 1968 and Batakrushna died leaving behind him his son Defendant No. 4 and daughter Defendant No. 5 and his widow Defendant No. 3 Dijabara and Birabara are Defendant Nos. 1 and 2 respectively. Nisi is Defendant No. 6 Babana died in the year 1940 leaving behind him his three sons, namely, Sanei, Jai and Mahi out of whom Jai and Mahi died unmarried. Sanei died on 12.1.1974 leaving behind him his widow Plaintiff No. 7, sons Plaintiff Nos. 1 to 4 and daughters Plaintiff Nos. 5 and 6. The Plaintiffs described the disputed property in Schedules 'B' and 'C' of the plaint. Those property were joint family properties and out of the same, the property described in Schedule 'B' has been recorded jointly in the name of both the branches in the Settlement of the year 1929 as well as in the Settlement which was finally published in the year 1970 with the note that both Abhina and Babana have 8 annas share each. Plaintiffs further case was that Achuti was looking after the family property and after his death, Batakrushna looked after it. Though in the Settlement of the year 1970 the note of possession was recorded separately, there was no severance of joint status. Schedule 'C property was recorded exclusively in the name of Ahina in the Settlement of 1929. Thereafter the same as also been recorded in the name of Batakrushna and Defendants 1 and 2 in the Settlement of the year 1970. The Plaintiffs claimed 8 annas share from the said property as there was common interest in respect of the family property. Alternatively, they claimed that if it is found that the property was acquired by Abhina alone, then also they are entitled to a share since the property was thrown to the joint family properties and blended with the same and both the parties have contributed their labour and energy for development of the said properties. Hence, the Defendants cannot claim exclusive right over the same. Dispute in the joint family arose after the death of Batakrushna for which there was a severance of jointstatus. The Plaintiffs came to know about the note of separate possession recorded in the ROR and there was no basis for such separate note. Plaintiffs demanded for partition. Defendants refused the same. Therefore, the suit was filed with a prayer that Plaintiffs are entitled to 8 annas share in the family properties.

(3.) THE Defendants filed their written -statement and contended, inter alia, that common ancestor Rahasa died prior to 1913. Abhina died before 1929 and Batakrushna also died by the time of Settlement of 1929. During the lifetime of Abhina and Babana, two branches had been separated by mutual consent. Since then, they were living in separate mess having their separate residential house. That arrangement continued prior to 1929 and at no point of time Achuti and after his death, Batakrushna looked after the joint family properties. As severance of joint family status was made long before 1929, notes of separate possession was reflected in the ROR in Sabik Settlement. Due to inaction of the parties, the same continued in the Hal Settlement. Schedule 'C' property was acquired by Abhina out of his own resources and he was a Sikkimi tenant and bhagchasi of the said land. He acquired the said property by living in separate mess in the year 1929. It was never treated as joint family property nor was it also thrown to the joint family property or blended with the same. As there was a severance of status between the parties prior to 1913 and the property was acquired thereafter, at no point of time the Plaintiffs were in possession of the said property. The parties are possessing the property separately by amicable family arrangement prior to Sabik Settlement. Therefore, the Plaintiffs' suit for partition is liable to be dismissed, as there was no joint family property.