RAMPRASAD NANDA Vs. AMRA KRISHNA

JUDGEMENT

(1.) 1. This second appeal was admitted on the following substantial question of law :-

(2.) Brief facts, for the disposal of this second appeal are that the respondent Amra filed suit for declaration and permanent injunction on the ground that in village Goriakhedi, agricultural land bearing khasa No. 134 survey No.22 having the area of 10.071 acres and assessed to land revenue Rs. 48.7 which has been recorded in the name of plaintiff and defendant, jointly. Appellants/Defendants are the sons and daughters of late Nanda, who was the brother of plaintiff. The contention of respondent/plaintiff Amra in the plaint was that aforesaid khata was partitioned by their father Krishna between Amra and Nanda. It was further, contended in the plaint that at the relevant time girls were not having any share in the property and after partition 50% land was given to plaintiff Amra and remaining 50% land was given to Nanda but the land survev No. 216 was not partitioned and it remained in the possession of Krishna, father of the plaintiff which is in dispute in this suit. This land bearing survey No. 216-was received by Krishna from one Godad after payment of some dues and land was recorded in the name of father Krishna. This land was again divided by father between the plaintiff and the defendant Nanda, thereafter the father of plaintiff demanded the expenditure of mutation from both the brothers, but deceased Nanda refused to pay the said amount. On refusal, plaintiff forcibly took possession, on the share of Nanda's land in survey No. 216 and since then he is in possession over the said land. His possession being hostile, adverse and long he became the owner of the land by virtue of adverse possession and he sought declaration that it be declared that he is the owner of the half of the land of survey No. 216 which was in the share of deceased Nanda, that father of the appellants/defendants as he is continuously cultivating the same since last 30 years.

(3.) In the written statement appellants/defendants denied the claim of the plaintiff and submitted that entire submission of plaintiff is concocted. Land is the joint property of both and also in joint possession of the parties. There was no such partition of land between two brothers, The trial Court framed issues, recorded the evidence and after appreciating the same dismissed the suit of respondent/ plaintiff on the ground that he has failed to prove partition of the aforesaid land as well as the ouster of deceased Nanda and his legal heirs from aforesaid land and found that disputed land was joint property of both plaintiff and defendant as there was no partition, and no ouster of one of the parties.