- (1.)BOTH the appeals arise out of the same judgment. Plaintiffs are appellants in both the appeals which were heard analogous. Parties to the suit belong to the same family, Krushna Chandra Samantaray had three sons -- Laxman (who is dead), Biswanath (plaintiff No. 1) and Lokanath (defendant), Plaintiffs Nos. 2 and 3 are sons of Laxman.
(2.)THE case of the plaintiffs is that while their family was joint. Laxman was the sarbarakar and defendant was serving as a doctor at Narsinghpur. Plaintiff No. 1 was looking after the properties. The properties were acquired out of the joint efforts of the brothers and, after amicable partition, the brothers were possessing separate properties. On 19-3-1935, the defendant made an application on behalf of all the three brothers to the Raja Saheb of narasinghpur for settlement of the lands described in Schedule B of the plaint and the Raja Saheb settled the lands in fovour of the three brothers on 13-51935. These lands, like all other lands acquired by the brothers either individually or collectively, were being always treated and enjoyed as part of the joint family property and were blended with the joint family property. In the year 1946 or 1947, there was an amicable partition between the three brothers, in which the lands described in Schedule B were also divided and out of those plaintiff No. 1 got the lands described in Schedule B/1, father of plaintiffs 2 and 3 got Schedule B/2 lands and defendant got Schedule B/3 lands. When defendant tried to claim the entire Schedule B property as his exclusive property and applied to the revenue authorities for settlement of the same in his favour exclusively, the revenue authorities though they had no jurisdiction to entertain the application, settled the lands in favour of the defendant. Alternatively, it is alleged that even if the settlement is assumed to be valid, it should be deemed to be in favour of the entire body of co-sharers. Accordingly, the plaintiffs claim declaration of their title and confirmation of their possession over Schedule B/1 and B/2 lands and for declaration of joint title and confirmation of their joint possession along with the defendant over the entire B schedule lands. Defendant has denied the claim of the plaintiffs and has claimed his exclusive title and possession over the entire B schedule lands. According to him, these lands were originally Baidya Jagir lands of one Krupasindhu Mohapatra, who relinquished the same in favour of the defendant. The Ruler of Narasinghpur settled these lands only in favour of the defendant and on rent free basis. It is also contended that the B schedule lands were Anugrahi Jagir lands and when jagir was abolished, the, lands were settled in favour of the defendant, after rejecting the claim of the plaintiffs. It is alleged that the suit is barred under section 39 of the Orissa Estates Abolition Act. The defendant also contends that the suit is bad for non-joinder of necessary parties, as all the legal representatives of Laxman have not been impleaded in the suit, even though laxman died in 1968.
(3.)THE trial court held that though B, schedule lands were the self-acquired property of the defendant, yet this property was being enjoyed jointly by all the three branches of the family and was also partitioned between them, in which each branch was allotted a share and possessed the same. He further found that the suit was bad for non-joinder of necessary parties and was also barred under Section 39 of the Orissa Estates Abolition Act. On these findings, he dismissed the suit, but at the same time he passed an order that the receiver who had been appointed in the suit was to distribute the usufructs of the suit land in his possession in three shares among the three branches on the basis of their prior partition,