ABHIMANYU SAHU Vs. NARAYAN CHANDRA SAHU

JUDGEMENT

(1.) Plaintiff has filed this appeal. The suit was filed for partition of properties as described in Ka, Kha, Ga and Gha Schedules of the plaint. The plaintiff's prayer for partition has been accepted by the trial Court in respect of Lot Nos. 1 and 3 of Ka Schedule and Lot Nos. 1 and 4 of kha Schedule. The prayer for partition has been rejected in respect of Lot. No. 2 of Ka Schedule and in respect of the entire Ga and Gha Schedule properties. So far as Lot Nos. 2, 3 and 5 of kha Schedule are concerned, it has been held that the plaintiff alone is entitled to such properties. The plaintiff is aggrieved by the refusal of the trial Court to partition Lot No. 2 of Ka Schedule and Ga and Gha Schedule properties. The decree of the trial Court in respect of other properties having not been challenged by any of the parties has become final and the present appeal is confined only to Lot No. 2 of Ka Schedule and Ga and Gha Schedule properties.

(2.) The cases of the rival parties relating to the aforesaid disputed properties now involved in appeal are only required to be discussed. There is no dispute that plaintiff and defendant No. 1 are two brothers and Gajendra was their father and defendant No. 2 is their widowed sister. The dispute relating to Lot No. 2 of Ka Schedule and Ga Schedule is confined to plaintiff and defendant No. 1, whereas the dispute relating to Gha Schedule properties involves primarily the plaintiff and defendant No. 2.

(3.) Lot No. 2 of Ka Schedule is a leasehold property. It is the case of the plaintiff that out of the leasehold property extending to Ac. 0.70 decimals, Ac. 0.43 decimals of land had fallen to the share of Gajendra in a registered deed of partition effected in the year 1969 and the balance Ac. 0.27 decimals had fallen in equal proportion to the shares of three other brothers of late Gajendra. The plaintiff claims that some constructions have been made on Lot No. 2 with the joint contribution of plaintiff and defendant No. 1 and after the death of Gajendra in the year 1978, the same should be partitioned between plaintiff and defendant No. 1, as the other sisters of plaintiff and defendant No. 1 including defendant No. 2 have relinquished their interest. The case of defendant No. 1 in respect of this property is that the periodical lease having not been renewed, plaintiff cannot claim any share. It is further pleaded that even assuming that plaintiff can claim any share, it had been decided by Gajendra and his brothers that out of Ac. o.43 decimals, defendant No. 1 would get Ac. O. 34 decimals and the balance Ac. 0.09 decimals should be enjoyed by Gajendra. For the aforesaid purpose, defendant No. 1 has relied upon an agreement between Gajendra. his brothers and defendant No. 1, dated 10.1.1969.