SHYAM SUNDAR DASH Vs. SUREKHA DASH

JUDGEMENT

(1.) THIS is a Defendants appeal against the Judgment and decree of the Learned District Judge, Cuttack passed in Title Appeal No. 56 of 1993 setting aside the Judgment and decree recorded by the Learned Subordinate Judge, Athagarh in T.S. No. 22 of 1988.

(2.) THE original Respondent -Brajabandhu Das filed the above noted suit for partition of the suit property. His averment was that he and the Defendant jointly purchased the suit land measuring Ac.0.66 dec. in plot No. 1468 of Khata No. 571 from one Nemai Ch. Harichandan for a consideration of Rs. 300/ - on 30.1.1951 and jointly took delivery of possession and accordingly in the last settlement R.O.R. the suit land was jointly recorded in the name of the Plaintiff and Defendant. However, there was severance of joint family status in the family in the year 1964 and each brother possesses different parcels of land by mutual arrangement. In the process, the Plaintiff and Defendant possessed half and half of the suit land, the Plaintiff possessing Ac.0.33 dec. towards northern side and the Defendant possessing the remaining Ac.0.33 dec. on the southern side. Since hostile feeling generated between the Plaintiff and Defendant, Plaintiff filed a mutation case bearing No. 1354 of 1986 before the Tahasildar, Athagarh for mutation of his half share of the suit land, but the Tahasildar rejected that prayer with the observation that the parties should go for partition suit. Accordingly, the Plaintiff filed the above noted suit. The Appellant -Defendant besides challenging the suit on the ground of maintainability, lack of cause of action, limitation, non -joinder of necessary parties, denied title of the Plaintiff over the suit land and asserted that he paid the entire consideration money for the suit land and possessed the suit land exclusively. He denied that the Plaintiff had paid any part of the consideration or possessed any part of the suit land. He also pleaded that even otherwise the Plaintiff had lost his title over the suit land as he was ousted from that land in May, 1965 and did not put -forth any claim till 1986. As an alternative plea, the Defendant claimed title over the suit land by adverse possession.

(3.) AT the time of admission of the appeal, the following substantial question of law was formulated: