S.K.Ray, J. -
(1.) THE Plaintiff in a suit for partition has filed this second appeal from the reversing decision of the lower appellate Court. The Plaintiff and Defendant are the uterine brothers and members of one family as will be seen from the genealogy reproduced herein below:
Ananta Misra (wife) Mukta Lokanath Baidyanath Udayanath (Defendant) (Plaintiff) (died -1948)
Mukta 's father and grandfather are respectively Harihar Rath and Gopinath Rath. Anata Misra, the father of the parties, died 45 years back and their mother Mukta died about 20 years ago. The Plaintiff filed the suit for partition in respect of "Ka" Schedule property of which "Kha" Schedule property is a part. "Kha" Schedule property was undisputedly the property of Mukta. There was, in fact, a partition 10 the year 1942 amongst the three brothers, namely, the Defendant, Plaintiff and late Udayanath. In evidence thereof a partition deed was registered which has been proved in this case as Ext. 1. The Plaintiff, in this suit, has sought to ,reopen that partition on the ground that the said partition had been effected under a mistaken notion of the parties as to the statue of the Defendant m the family. Udayanath having died in 1948, his widow Hrudamani having died a civil death by remarriage in 1949, the Plaintiff also wants his share in the properties left by him.
(2.) THE facts leading to the Plaintiff 's aforesaid claim may now be set out in a little more detail. It is alleged that "Kha" Schedule lands were acquired by their mother Mukta by purchase from her mother Durga Bewa and maternal grandmother Maguni. Before the first partition in 1942, the three sons of Ananta were having jointly and the Defendant being the eldest member of the family was the karta. In the 1928 Settlement, the Defendant duly recorded all the joint family properties in the names of the Plaintiff and the Defendant. The Plaintiff was serving at Tata and was, therefore, remaining away from village. He found that the Defendant was trying to appropriate the joint family usufructs and, therefore, he desired a partition in 1942. In that partition, the Defendant represented that he was the adopted son of his maternal grandfather Harihar Rath who was the owner of "Khan Schedule properties, and on the faith of that representation "Khan Schedule properties were allotted to him and he did not take a share in the joint family properties in "Kan Schedule which were ' divided between the Plaintiff and Udayanath. After the death of Udayanath on 17 -7 -1948, the properties allotted to his share were inherited by his widow Hrudamani, who in the year 1949, remarried. The Defendant, there after, forcibly possessed the lands of Udayanath and refused the Plaintiff 's claim to the same. This led the Plaintiff to file O.S. No. 39 of 1954 for a declaration of his title to Udayanath 's properties and for possession of the same. This litigation ultimately terminated in this High Court where, by the judgment dated 23 -12 -1963, it was declared that the Defendant was not the legally adopted son of Harihar Rath and that he also was entitled to a share in the joint family properties. It is, therefore, asserted that the 1942 partition having been vitiated on account of the fraudulent misrepresentation of the Defendant that he was the adopted son of Harihar Rath, it was liable to be re -opened. The Plaintiff has, therefore, prayed for partition of his half share in 'Ka ' Schedule and in case, such partition is not feasible, then the entire "Khan Schedule properties may be partitioned allotting moiety share to him. The Defendant 's case is that Since he was in service and well -placed in life and joint family properties were meagre he did not claim any share therein in the 1942 partition. Most of the lands in Khata 149 belonged to his mother Mukta who had recorded the same in his name in R.S. and he is in possession of the same since then and rest of the land in that khata had been purchased with his own earnings. He also claims holding numbers 152, 182, 260, 112, 183 and 21 as his separate properties, some of which had been purchased in the name of his wife and on her death he has become the owner in possession of those properties as her heir. With regard to the properties allotted to Udayanath in the 1942 partition, his case is that Hrudamani, the widow of Udayanath, had orally gifted away the lands to him before her remarriage in 1949 and, since then, the Defendant is possessing the same exclusively in his own right. Thus, he being in possession of the same for more than twelve years, he acquired title thereto by adverse possession.
(3.) THE trial Court excluded holding numbers 112, 182, 183, 21 and 260 from partition on the ground that they were the self -acquired properties of the Defendant. That findings was not challenged in the lower appellate Court and has thus became final. The lower appellate Court held that holding No. 152 was also the separate property of the Defendant. That finding does not appear to be affected with any infirmity and must, therefore, be upheld. Thus, even if the Plaintiff succeeds In re -opening the first partition of 1942 and a fresh partition is ordered, nevertheless, the holding numbers 152, 182, 260, 112, 183 and 21 must be excluded on the ground that they are the self -acquired and separate properties of the Defendant. The lower appellate Court has further found that holding numbers 149 and 259 are the properties of Mukta Dibya. In respect of these holdings the Defendant also claims to be in possession in his own right for more than 12 years and, it is claimed that if all other defences of his failed, he should succeed on the ground that he has acquired title thereto by adverse possession.;