MAHADEB PATNAIK AND ANR. Vs. DULA DEI

JUDGEMENT

(1.) BAIRAGI and Lachman were brothers. Bairagi died in 1941 leaving behind his two sons Mahadeb (Plaintiff -1) and Krupasindhu (Plaintiff -2). Lachman died in 157 leaving behind his daughter Dula (Defendant). The suit relates to ka and Kha schedule lands. ka schedule land is the jagir property and kha schedule is ancestral property of the family. Plaintiff's case is that Lachman died in a joint status with them. The entire property under Ka and Kha schedules devolved by survivorship on the Plaintiffs and the Defendant had no interest therein. The defence case is that before his death Lachman was partitioned by metes and bounds from the Plaintiffs and Bairagi.

(2.) THE concurrent finding of the Courts below is that Lachman died in a state of jointness with the Plaintiff and that both Ka and Kha schedule lands belonged to the joint family. This finding is not assailable in second appeal and has not been assailed by the advocate.

(3.) TO negative this contention of Mr. Misra, Mr. Mohanty urges that the service -tenure in respect of the Ka schedule land came to an end on the death of Bairagi and Lachman and unless a fresh Paruana was granted (in the language of Mr. Mohanty), issued Plaintiffs were not to be treated as service -tenure -holders. This argument is wholly inadmissible in the absence of pleading. On the contrary, Defendant took the positive stand that she inherited the property -both Ka and Kha -as there was a complete partition between Bairagi and Lachman. Such a contention involving question of the fact is wholly untenable and is accordingly rejected.