RANGA BEWA Vs. RAJU LENKA

JUDGEMENT

(1.) THE facts giving rise to this appeal are rather complicated, but the question of law arising is extremely simple.

(2.) THE plaintiffs deceased husband, Danei, was the adopted son of Kelu. Kelu and Pira were uterine brothers. Subsequent to the adoption of plaintiff's husband a son, Kalindi, was born to Kelu, and as Kalindi died issueless when he was joint with Danei, Kelu'a 8 annas share in the joint family properties devolved on him. Pira brother of Kelu, died leaving him surviving his widow, Sadhabani. The admitted case of the parties is that by a registered deed of partition, dated 15th June 1913, the plots in disputes were divided between Kelu and Pira. The present dispute relates to possession of the properties allotted at the partition. During his lifetime Kalindi (the natural born son of Kelu) executed a deed of gift dated 30th January 1917, in favour of Banambar, son of Pira, conveying the 8 annas share of Kelu in the suit properties ignoring the interests of Danei. Banambar, however, predeceased his mother, Sadhabani. Thus, Sadhabani on the death of her son, Banambar, became entitled to the entire interest in the property, 8 annas interest having been inherited by her through Pira and the rest by the deed of gift from Kalindi to her deceased son. Sadhabani herself gifted away her entire interest in the property to her son -in -law, one Arta, by a registered deed of gift dated 21st November 1919. Arta, in his turn, executed a sale of the entire property in favour of defts. l to 2 by a registered sale deed dated 11th July 1923. Danei's son, Hazuri, asserted his title to s annas interest in the property and executed a sale deed, dated 26th June 1923, in favour of one Padan Panda.

(3.) THE plots in dispute are: R.S. plot No. 122 measuring .08 of an acre; R.S. plot 124 measuring .05 of an acre with two shop rooms thereon; R.S. plot No. 125 measuring .01 of an acre with two rooms ; and R.S. plot No. 126, measuring .04 of an acre with six rooms thereon. A slight increase in the area of most of these plots is noticed in the subsequent survey and the Current Settlement entries show that the R.S. plots numbers have also been altered. Thus R.S. 122 corresponds to C.S. 212 and measures .09 of an acre; R.S. 124 corresponds to C. S. 211 and measures .08 ; and R.S. 126 corresponds to C.S. 203 though its area has remained unchanged. According to the deed of partition plot No. 122 was divided equally between Kelu and Pira, each getting a half share; out of plot No. 124 Kelu got .02 and Pira got .03 with the two shop rooms thereon ; plot No. 125 measuring .01 of an acre with two rooms thereon was allotted to Kelu alone. Thus plots Nos. 124 and 125 measuring together .06 of an acrs and containing four rooms were equally divined so that each cosharer got .03 of an acre of land and two shop rooms. Plot No. 126 was evenly divided so that each party got 02 and three rooms. It appears that at the time of the proceedings under Section 145, Criminal P.C., the plaintiff was found in possession of all the four shop rooms, standing on plots 124 and 125 and of one room on plot No. 126. The plaintiff was thus in possession of five rooms though the possession was not in accordance with the allotment made at the partition. Sadhabani, the widow of Pira, was similarly in possession of five rooms on plot No 126. The purchasers from Arta had no possession of any of these rooms or lands at the time.