- (1.) This miscellaneous appeal has been preferred against the judgment dated 29th November, 2008, passed by learned Addl. District Judge (F.T.C.), Simdega in connection with Partition Appeal No.11 of 2005 whereby the learned Addl. District Judge has set aside the judgment passed on 30.06.2005 and decree signed on 11.07.2005 in connection with Title Partition Suit No.11 of 2004 and remanded the suit back to the trial Court with a direction to readmit the suit under its original number in the suit register, take additional evidence, if produced and proceed to determine the suit at the earliest, preferably within four months and the parties shall bear their own costs.
(2.) Besides setting aside the impugned judgment and decree the learned Addl. District Judge, by invoking Rule 23 of Order XLI of the Civil Procedure Code, framed following additional issues for proper adjudication of the dispute involved in the suit: Issue No.10: Whether the entire suit land including land of Saldega Khata No.73 are self acquired property of late Stanislas Ekka or it is joint properties of the parties to the suit ? Issue No.11: Whether the possession of land of village Tabhadih and Gondlipani by plaintiff and possession of land of village Saldega by contesting defendants are joint possession of all parties or it has excluded their right and title on the principles of estoppal or ouster from partition of suit land ?
(3.) The plaintiff/respondent no.1 had filed Partition Suit No.11 of 2004 in the Court of learned Sub Judge- I, Simdega in which the defendants, who were brothers, were arrayed as defendant nos.1, 2 and 3 whereas Bhushan Ekka, brother of Lal Ekka was made proforma defendant no.4. During pendency of Partition Suit No.11 of 2004. Joseph Ekka died and vide order dated 08.01.2010 he was substituted by his sons Saurav Ekka and Swapnil Sonal Ekka who were represented through their natural mother Pushpa Ekka, wife of late Joseph Ekka. The plaintiff/respondent no.1 had made out a case in its plaint that Allois Ekka and Stanisless Ekka both sons of Joseph Bhukhan Ekka had acquired landed property jointly in their names by virtue of following three sale deeds at different villages: (i) through registered sale deed no.11 dated 15.01.1951, executed by Jugal Singh son of Swarup Singh and Gandharv Singh @ Shanichar Singh in favour of Allois Ekka and Stanisless Ekka at village Tawadih. (ii) through registered sale deed no.18866 dated 23.03.1966, executed by Gujju @ Joseph Khariya son of Ram Khariya in favour of Allois Ekka and Stanisless Ekka for the land situated at village Saldega. (iii) through registered sale deed no.501 dated 29.07.1966 executed by Atma Ram Marwari son of late Dhannu Ram Marwari in favour of Allois Ekka and Smt. Albina Ekka, wife of Stanisless Ekka for the land situated at village Gundalipani. The properties, as mentioned above, have been more fully described in the schedule of the plaint. Plaintiff Lal Ekka and proforma respondent Bhushan Ekka in the original suit no.11 of 2004, are sons of Allois Ekka whereas original defendant Nicholas Ekka, Suprian Ekka and Joseph Ekka are sons of late Stanisless Ekka. Since the landed property, as detailed above, were acquired by father of the plaintiff and defendants, they jointly enjoyed their peaceful possession over the same during their life time. After the death of their father, the plaintiff and defendants have succeeded and inherited jointly their right, title and interest in the said property. No partition had taken place in respect of suit property during the life time of Allois Ekka and Stanisless Ekka but the parties were enjoying and cultivating their possession over the suitland according to their convenience.;