GUNANIDHI PANDA Vs. ASHA BUDEK

JUDGEMENT

(1.) The sole defendant is in appeal against the judgment and decree of the learned Subordinate Judge, Bargarh passed in a suit for partition.

(2.) Plaintiff's case, briefly stated, is that Ananta and Dukhu, the predecessors of the plaintiff and the defendant were real brothers. Ananta died leaving behind his son Rama who is survived by Gunanidhi, the defendant. Dukhu died leaving behind his widow Laxmi and only daughter, the plaintiff. The properties described in schedule 'A' of the plaint were the ancestral properties of Ananta and Dukhu. Both the brothers during their life time lived separately and possessed the suit properties according to their share without there being partition by metes and bounds. Upon death of Dukhu, his half share in the suit properties devolved upon Laxmi and on Laxmi "s death, upon me plaintiff. Laxmi was possessing those properties which were being possessed by her husband Dukhu. When she became old and was unable to take up personal cultivation the defendant possessed all the properties and was giving 8 to 10 pudags of paddy each year to Laxmi towards her share. Upon her death, the defendant continued to possess the properties in the same manner and was giving 8 to 10 pudags of paddy to the plaintiff each year. Two years prior to filing of the suit the defendant stopped giving paddy to the plaintiff towards her share and also did not allow her to possess the properties .which were being possessed by her father, Dukhu. So, she requested the defendant for amicable partition and same having not been heeded to, she filed the present suit claiming half share in the suit properties.

(3.) The case of the defendant in the written statement is that Ananta and Dukhu were all along living in joint mess and property. While living so, Ananta died leaving behind his only son Rama, and Dukhu was survived by his wife Laxmi. Rama and Laxmi possessed the suit properties jointly till their death. On Laxmi's death branch of Dukhu became extinct. Asha. the plaintiff, is not the daughter of Dukhu. She was an orphan being distantly related to Laxmi through her father's side and out of pity, Laxmi brought and maintained her and when she grew old gave her in marrige. The further case of the defendant is that he being the only surviving heir in the family has been possessing the entire suit properties to the exclusion of the plaintiff for more than twelve years.