Decided on February 11,2005

Chitrautin Bai Appellant
MANOHAR Respondents


DHIRENDRA MISHRA,J. - (1.) The instant Second appeal has been preferred by the Appellants/Defendants No. 3 and 4 against the impugned judgment passed by first A.D.J., Baloda Bazar in Civil Appeal No. 49-A/2003 and by which the appeal preferred by the Appellants has been dismissed and the judgment and decree passed by the trial Court has been confirmed.
(2.) Respondent No. 1 (hereinafter referred to as 'Plaintiff') filed a suit for declaration and perpetual injunction and partition against the Appellants and Respondent No. 2 and 3 on the averment that the suit property is a coparcenary property recorded in the name of their father Delaou. The Appellants and Respondent No. 3 are sisters and Respondent No. 2 is the brother of the Plaintiff. Father Delaou had given four acres of land each to the Plaintiff and the Defendant No. 1 on the partition during his lifetime and in the remaining two acres of land also the Plaintiff and Defendant No. 1 have possession. However, the Defendants No. 2, 3 and 4 were creating dispute regarding the suit property and have initiated proceedings before the Revenue Courts. It was also pleaded by learned Counsel for the Appellants that though Defendants No. 2 to 4 are not the members of the coparcenary property and do not have any right of partition over the suit property and the relief was sought that the Plaintiff was entitled for half share on the suit property and the Defendants should be restrained from interfering with the possession of the Plaintiff and share be fixed. Defendant No. 1 namely Bahas Ram in his reply submitted that he is also entitled for half share in the suit property and Defendants No. 2 to 4 has no right over the suit property. He further pleaded that on the application of Defendants No. 3 and 4, Nayab Tehasildar, Bhatapara vide order dated 10-3-1997 passed in Revenue Case No. 3-A/27 year 1996-97 had partitioned the property which was subsequently set aside by the S.D.O., Bhatapara vide order dated 27-2-1999. The Appellants/Defendants 3 and 4 in there written statement denied the avernment of the plaint and stated that suit property was not a coparcenary property and they also denied the allotment of four acres of land each to Plaintiff and Defendant No. 1 during the life time of Delaou. It was submitted that the Defendants and Plaintiff were jointly in possession of the suit property and their names have been recorded in the Revenue records. The Nayab Tehasildar, Bhatapara, vide order dated 10-3-1997 had partitioned the suit property and in pursuance of the said partition the Defendants No. 3 and 4 are in possession.
(3.) However, it was admitted that the order of partition dated 10-3-1997 of Annexure D/3 has been set aside in appeal by the S.D.O., Bhatapara and even then, in compliance of the above partition order Defendants No. 3 and 4 have been put in possession vide order dated 23-10-1997. They also pleaded that the Nayab Tehasildar, Bhatapara in Revenue Case No. 7-A/27 year 1999-00, Bahas Ram v. Manohar had passed an order to the detriment of the interest of Defendants No. 3 and 4 against which they preferred an appeal before S.D.O., Bhatapara which is pending. On the basis of the pleadings of both the parties issues were framed and learned Civil Judge, Class-II, Baloda Bazar, also held the property coparcenary property and partially decreed the suit holding that the Plaintiff was entitled for 1/3rd share and l/5th of 1/3rd share to the suit property whereas Defendant Nos. 2 to 4 were entitled for 1/5th of the 1/3rd share each to the suit property. The Defendants No. 3 and 4 preferred an appeal and the learned First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the learned Civil Judge.;

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