BIKAL SWAIN Vs. ISWAR SWAIN

JUDGEMENT

(1.) THE only question of law raised in this appeal is, of the plaintiff was entitled to any relief under Section 4 of the Partition Act (Act No. 4 of 1895 ). The facts are these:

(2.) THE plaintiff brought a suit for partition of the homestead plot No. 1277, measuring 0. 03 acre and the Bari plot No. 1309, measuring 0. 07 acre and desired to enforce his right to purchase the undivided share previously purchased by the defendant. The plaintiff's whole case was that though the other properties had been divided, the aforesaid two plots in dispute were in joint possession and accordingly he is entitled to the relief under Section 4 of the Partition Act. The defence was that the two disputed plots had also been divided between the two branches of the family, each branch being in separate possession of his portion of the property. Since the plots were rather too small, separate possession was not shown in the settlement records.

(3.) THE trial court came to the finding that the two suit-plots were not divided between the plaintiff and his cousin and the defendant was not a member of the family. The concurrent findings of fact therefore were that the defendant was not a member of the family and that the homestead and the Bari plots remained undivided. The trial court, however, relying on a decision of the Patna High Court: babulal Tiwari v. Hulla Mallah reported in AIR 1938 Pat 13, came to the conclusion that the plot No. 1309 (Bari) was ordinarily and reasonably necessary for the enjoyment of plot No. 1277 (homestead) and hence the plaintiff is entitled to relief under Section 4 of the Partition Act and directed him to pay a sum of Rs. 72/towards the valuation of the two disputed plots.