KAMINI BEWA Vs. SRIMATI DEI

JUDGEMENT

(1.) Defendant No. 3 in Title Suit No. 58/13 of 1971/74 is the appellant in Second Appeal No. 360 of 1981 and plaintiff No. 1 in Title Suit No. 71 of 1971 is the appellant in Second Appeal No. 361 of 1981.

(2.) One Basu Sahu who is the common ancestor had five sons and Kamini, the widow of Manmohan - one of the five sons of Basu is the plaintiff in Title Suit No. 71 of 1971. Srimati who is wife of Nrusinha, son of Anadi - another son of Basu, is plaintiff No. 1 in Title Suit No. 58 of 1971. Kamini filed Title Suit No. 71 of 1971 for a declaration that the partition deed dated 5-4-1952 was illegal, invalid and not binding on her and for a further declaration that Kabala dated 14-4-1960 executed by Bana (defendant No. 3 in. Title Suit No. 71 of 1971) was illegal, void and further prayed for injunction against defendants 2 and 3. Srimati along with her husband Nrusinha filed Title Suit No. 58 of 1971 for eviction of Kamini and for recovery of possession with damages and for permanent injunction in respect of the house property standing over an area of Ac.0.18-5 kadis. The genealogy of the family is not disputed, which is given hereunder :- In the suit filed by Srimati and Nrusinha (T.S.58/13) of 1971/74) it was alleged that the five sons of Basu separated from each other in mess and property according to the allotments made in the partition deed dated 5-4-1952 and the suit property fell to the share of Benamali who was in exclusive possession and enjoyment of the same. Benamali sold the, land to plaintiff No. 1 by a registered sale deed dated 14-4-1960 and delivered possession of the same and plaintiff No. 1 continued to remain in possession till 10-5-1971, when defendant No. 1 forcibly broke open the lock and enjoyed the suit house and threatened the plaintiffs for dismantling the existing house and to make a pucca construction in its place. If was also further stated that said defendant No. 1 (son of Manmohan and Kamini) had himself filed a title suit being Title Suit No. 96 of 1964 under S.4 of the Partition Act which was dismissed and has become final. In view of the aforesaid possession of defendant No. 1, plaintiffs claimed damages at the rate of Rs. 2/- per day. Kamini, the mother of defendant No. 1, was arrayed as defendant No. 3 and Benga, the wife of defendant No. 1 was arrayed as defendant No. 2.

(3.) Defendant No. 1 filed a written statement stating that the sons of Basu were occupying different portions of the suit premises according to convenience and Alekha, one of the sons of Basu, transferred his share to Anadi, who raised a pucca structure and is occupying the same. Banamali and defendant No. 1 had common courtyard and there had been no actual division by metes and bounds of the homestead of Basu Sahu. Since Banamali had no issue, he was living together with defendant No. 1. Taking advantage of Banamali's simplicity, the plaintiffs obtained some documents. It was also averred that in the so-called partition deed, there had been unequal division and the partition deed had not been acted upon. It was also alleged that the partition was invalid as defendant No. 3 who had an interest in the joint family property was not made a party nor any share had been allotted in her favour. Defendant No. 2 filed a separate written statement and also challenged the maintainability of the suit. Defendant No. 3 took the plea that the so-called partition was illegal and invalid since she was not made a party to the deed nor any share had been given to her and, therefore, the allotment made as per the partition deed did not confer any title of the parties.