KALINDRI DEVI Vs. SARO DEVI

JUDGEMENT

(1.) THIS appeal has been preferred against the dismissal of the Partition Suit No. 14/1988 on contest with costs. The Genealogical table given in the plaint, which is not disputed by the defendants -respondents, is hereunder : - - GENEALOGY | Lodeng Sahu ________________________________________________________________________________ | | | | | Surajnath Sukhdeo Hira Nageswari Rukmini Devi ____|___________ ______|___________ |_________ | | | | | Rampril Babulal Bandhu Bigu @ Rabindra Em Narain According to the plaintiffs, the family of the plaintiffs and defendants are governed by Mitakshra School of Hindu Law read with Hindu Succession Act, 1956. The plaintiffs filed the suit for partition of the properties given in the Schedule A, B, C, D, E, F and G. The Schedule A property, according to the plaintiffs, are situated in the village - Birkera and recorded in the name of Dirpal Sahu, Schedule B properties were purchased by Dirpal Sahu along with Jainarayan Sahu and on partition in Partition Suit No. 36/37 of 1965 -67, Dirpal Sahu got this property and thus, according to the plaintiffs, this also formed part of the ancestral property acquired by his father. Schedule C property, according to the plaintiffs, were acquired by Dirpal Sahu out of the joint family funds in the names of one and other members of the coparcenary as karta. Schedule D properties were purchased by Surajnath Sahu in the names of different persons of the family, as he had becomes the Karta of the family, out of the common fund. The property contained in Schedule E are the moveable, which are possessed by the karta and Schedule F is on the cattle heads that belong to the joint family and Schedule G property is the 1000 silver coins of Rs. 1/ - given to the karta, Surajnath Sahu, by the father. The case of the plaintiffs -appellants is that Dirpal Sahu had become old, therefore, the eldest son, Surajnath Sahu, had become the karta of the joint family and had taken charge of the common fund and all other things. The defendant No. 2, Sukhdeo Sahu, used to look after the joint family properties at village, Asro, while the plaintiffs and other members of the joint family were looking after the cultivation of the joint family lands at village Birkera. They were also looking after the cattle, such as cows, buffalos etc. and the defendant No. 1 as the karta used to go to the Registration Office and other places. When Gulpu Sahu and others trespassed upon the ancestral lands of Khata No. 62, plot No. 17/152, in order to avoid litigation, the Joint family took Rs. 3000.00 and sold the same to them and the sale proceeds thereof were retained by the karta. it is the case of the appellants that though the parties of the suit, for the purpose of enjoyment, cultivation and convenience, were cultivating and residing separately, but there had been no partition of the joint family lands by metes and bounds and the family was still one and the defendant No. 1, Surajnath Sahu, was the karta. The plaintiffs further pleaded that some lands were purchased in the name of Emnrayain Sahu, son of the plaintiff No. 1, by his father -in -law of the plaintiff No. 1. The cause of action of the suit arose when the plaintiffs demanded rendition of the accounts, which was refused. The prayer made was of a decree of partition allotting 1/3rd share in favour of the plaintiffs in respect of the properties described in the Schedules and also for appointment of a Pleader Commissioner to effect the partition by metes and bounds.

(2.) THE defendants -respondents appeared and contested the suit, denied the unity of the title and possession and raised a plea that the suit was not maintainable for adverse possession. A specific case pleaded by the defendants is that in the year 1970, as the father had become old, he had partitioned the raiyati and purchased lands into three equal shares. The moveable properties were also divided in 3 shares, according to which, the plaintiff Hira Sahu and his brother, Surajnath Sahu, got share in village - Birkera, while Sukhdeo Sahu got shares in village - Asro. The claim of the defendants is that the plaintiffs had not brought all the lands which were decided in favour of Dirpal Sahu in Partition Suit No. 36/37 of 1965. Their further case is that no dispute was raised by the plaintiffs regarding the properties shown in Schedule A, B and C, but one of the properties included in Schedule C. It is admitted that in the lands purchased on 7.5.1957, 4.4.1962, 11.7.1964 as given in Schedule C of the plaint, all the three sons had got equal shares as per the partition in the year 1970, but the plot No. 153 under Khata No. 166 does not figure in the sale deed dated 4.6.1962 and other lands in Schedule C had been purchased by the defendants with their own savings. Thus, positive case of the defendants is that after 1970, the father did not remain karta, nor the family was joint and all the three sons came in separate possession with separate cultivation, separate living peacefully and exercising their rights over the properties allotted according to the partition a land by Hira Sahu was also denied by the defendants. It was also denied that Surajnath Sahu was ever the karta of the joint family after partition and regarding Schedule B properties, it was pleaded by the defendants that they had purchased the same out of their own source of income and the properties described in Schedule D were purchased with their own saving and accordingly they were in their possession separately out of their own fund. In paragraph 12 of the plaint, the plaintiffs had made out a case that the lands of Khata No. 62, plot No. 17/152 measuring an area of 0.76 acres and plot No. 279 area 0.10 acres of village - Birkera were sold by the joint family to Gulpu Sahu and other at Rs. 3000.00 and the sale proceeds were retained by the karta, Surajnath Sahu. This claim was denied by the defendants. It ' has also been stated that Bhali Sao and his two brothers had approached to purchase the lands from Hira Sahu and Surajnath Sahu of their shares and as the rent was not bifurcated, the purchasers also asked Sukhdeo Sahu to put his signature in the sale deed and the defendant, Sukhdeo Sahu, had no concern with the land and half consideration had been retained himself by the Hira Sahu and half was received by the defendant, Surajnath Sahu. It was also denied that any land was sold to Gupla Sahu. Thus, according to the defendants, as the partition had taken place in the year 1970 itself, all the parties were in separate possession of the respective shares and subsequently they had purchased land out of their own savings and therefore, the question for further partition did not arise and consequently a prayer was made to dismiss the suit.

(3.) THE points for consideration in this appeal are (i) whether in the year 1970, there was a partition of the ancestral and acquired properties of Dirpal Sahu among his three sons and (ii) whether separate, residence, cultivation and separate possession of lands are sufficient to prove the partition and (iii) whether there was a common fund (Nudeus) managed by Surajnath Sahu as karta and (iv) whether properties acquired subsequent to the alleged partition are self -acquired property of the purchasers?