DURYODHAN Vs. BHARAT

JUDGEMENT

(1.) Duryodhan Mohapatra, defendant No. 1 in the trial Court and respondent No. 1 in the lower appellate Court has filed this appeal under O.43, R.1(4), of Civil P.C. (for short ' C.P.C.'), challenging the order of the lower appellate Court remanding the case to the trial Court with the direction to frame two specific issues, give opportunity to both the sides to adduce additional evidence, if any, on the said issues and to decide the suit afresh after hearing the parties.

(2.) The respondents filed the suit for partition of the suit properties and for separate allotment of Ac. 0.02 decimals of land out of the 2/3rd interest of the plaintiffs to defendants 2, 3 and 4. The suit property was the homestead land of one Kusuna Mohapatra. The case of the plaintiffs, shortly put, was that one Kusuna Mohapatra had three sons viz. Naran, Gangadhar and Gananatha. The three brothers were separated and were possessing their respective interests in the suit property before the current settlement and therefore separate note of possession of each branch had been noted in the record of rights. Of the three sons of Kusuna, Naran died first leaving his son defendant No. 1. Thereafter Gangadhar died unmarried. The plaintiffs are the sons of Gananath and the defendant No. 1 is the son of Naran. On the death of Gangadhar, his property devolved upon Gananath, the surviving brother. Out of the said suit property, an area of Ac. 0.02 decimals was sold to defendant No. 2 by Gananath by a registered sale deed dt. 7-4-1936. The suit property having not been partitioned by metes and bounds, the plaintiffs and defendant No. 1 were in possession of the same jointly. The request for amicable partition by the plaintiffs having been turned down by defendant No. 1. The plaintiffs filed the suit for the aforementioned reliefs. 2-A. In the written statement, defendant. No. 1 denied the plea of the plaintiffs and stated that Kusuna Mohapatra had two wives, namely, Saita and Jasomanti, Naran and Gangadhar were sons of Kusuna through his first wife, Saita and Gananath was his son through his second wife Jasomanti. After the death of Kusuna, Naran, Gangadhar and Gananath had together lived for some time, but subsequently they were separated. By the time of current settlement, the three brothers had separated. In the partition, the suit property had been allotted to Gangadhar and in the current settlement records, separate note of possession had been made accordingly. After the current settlement Gangadhar and Naran again reunited, lived together and Gangadhar died while living jointly with Naran. Naran thereafter succeeded to the suit property left by Gangadhar and possessed the same. The suit plots 1008 and 1009 with houses standing thereon were claimed to be in exclusive possession of defendant No. 1. On these pleadings the defendants denied the claim for partition, and allotment of shares of defendant No. 1.

(3.) The trial Court framed six issues, but no specific issues were framed on the questions whether Kusuna Mohapatra had two wives; whether Naran, the father of defendant No. 1 and Gangadhar were born through his first wife and Gananath was born through his second wife; whether Naran and Gangadhar were reunited after current settlement and Gangadhar predeceased Naran during their jointness. However, the trial Court considered these questions on the evidence available on record and came to hold that the case of defendant No. 1 as stated earlier is acceptable.