ALEKHA MANTRI Vs. JAGABANDHU MANTRI

JUDGEMENT

(1.) THE short point for consideration in this appeal is whether Section 4 of the Partition Act, 1893 (hereinafter referred to as the Act) is at all attracted in a suit for partition brought, not by a stranger purchaser but by a member of the family who is a co-sharer. THE facts which are no more in dispute may be stated. One Bhikari Mantri had two sons - Dama (D. 2) and Bhima. Bhima's wife is Pitei plaintiff No. 3 and her two sons are plaintiffs 1 and 2. Bhima died in 1953 while living joint with his brother and thereafter in 1954, the plaintiff and Dama (D. 2) effected a partition of their landed properties. But their ancestral dwelling house was left undivided, although their respective shares therein were specified in the registered partition deed dated 10-5-1954. On 11-5-1957, defendant No. 2 Dama executed a sale deed in respect of his share in the joint family house in favour of defendant No. 1. On toe strength of the sale deed so obtained, defendant No. 1 created disturbances in respect of the plaintiff's possession of the house. THE latter therefore instituted a suit for partition of the undivided house and prayed therein to allow them to purchase the share of defendant No. 1 on a price to be fixed by the Court.

(2.) DEFENDANT No. 1, who alone contested the suit averred that there was a partition by metes and bounds between the plaintiffs and defendant No. 2 not only in respect of the agricultural lands, but also in respect of this disputed family house, and that after partition, defendant No. 2 was living in that portion of the family house which was allotted to his share. After defendant No. 2 sold his share in the house to defendant No. 1, the latter remained in possession thereof and after some time demolished the old structure and constructed a new house on that plot of land. According to him therefore a fresh suit for partition in respect of the house is not maintainable. He also contended that he is an agnatic relation of the parties and not a stranger to the family and that therefore the plaintiffs are not entitled to avail themselves of the benefit of Section 4 of the Act.

(3.) WE would accordingly uphold the decision of the learned Subordinate judge and dismiss this appeal with costs. Appeal dismissed.