BHAGIRATHI Vs. PARSURAM

JUDGEMENT

(1.) This is a plaintiffs' second appeal against the reversing judgment of the Additional Subordinate Judge, Balasore dismissing their suit for partition. The appellants filed the suit (Title Suit No. 60 of 1975) for partition of property described in schedule 'Kha' to the plaint and for allotment of half share in their favour and the other half share to defendants 4 and 5. They also prayed for buying out the undivided dwelling house situated on plot Nos. 790 and 791 under S.4 of the Partition Act. The genealogy showing the relationship between the parties as given in the plaint is reproduced hereinbelow :- Of the four sons of the common ancestor Debei Jena, Kurup and Budh died issueless. Denei and Rudra, the other two sons of Debei became the owners in possession of the undivided homestead with the family dwelling house appertaining to plot No. 791 and the adjoining plot No. 790 forming a part of the said homestead, as well as the paddy lands under plots Nos. 723 and 788. Accordingly, these plots were jointly recorded in the names of Ananta, son of Denei and Rudra in the settlement record of rights. After the death of Rudra his share in the suit property was inherited by his sons, Bhagirathi (plaintiff 1) and Ratnakar (plaintiff 2), widow Kuturi Bewa (defendant 6) and daughter Michhei Dei (defendant 7). The said defendants 6 and 7 having relinquished their interest in the suit properties in favour of the plaintiffs, the latter are entitled to half share therein. After the death of Ananta, about five years prior to the suit, his share in the suit property devolved upon his son Parsuram (defendant 1), widow, Parbati (defendant 2), and daughter Nandi Dei (defendant 3). Due to his objectionable activities Ananta had been forced to leave the village with defendants 1, 2 and 4 for his father-in-law's place. Thus, the joint family homestead and the house standing thereon remained in possession of the plaintiffs.

(2.) Taking advantage of the absence of the plaintiffs from the village, Aparti Rout (defendant 4) a stranger to the family illegally trespassed upon the suit homestead and constructed a shed (Chalia) thereon giving out that he had purchased from Ananta his share in the suit homestead. According to the plaintiffs they requested defendants 1 to 4 for amicable partition of the suit property and requested defendant 4 to sell his portion of the suit-homestead on acceptance of due consideration from them. Since their request was not heeded to by the said defendants they filed the suit. Dukhishyam Mohanty (defendant 5) was impleaded in the suit as he claimed to have purchased Ananta's half share in the suit plots 728 and 788. The defendants 1 to 3 filed a joint written statement which was adopted by defendants 4 also. The gist of their case is that after the death of Kurup and Budhi, the other two brothers, Denei and Rudra became the owners in possession of the suit plots. They equally devided the suit plots 790 and 791 into two halves and possessed the land separately. In that division Denei was allotted northern half of the homestead plots 790and 791 and Rudra was allotted southern half of the said plots. There was a demarcating green fence running from East to West of the said land. After the death of Denei while his son Ananta was in possession of northern half of the homestead plots, he requested the plaintiffs to purchase the same on payment of due consideration. But the plaintiffs declined the offer. Thereafter he executed the sale deed in favour of the defendant 4 on 22-9-1972 as suggested by the plaintiffs and delivered possession to the purchaser. The defendants contended that the disputed homestead having been divided long since, the plaintiffs are not entitled to relief under S.4 of the Partition Act. Defendants 6 and 7 filed written statement supporting the plaintiffs. Defendant 5 did not contest the suit and was set ex parte.

(3.) Though the trial court framed several issues the most important and relevant one, issue No. 3, was to the following effect :- "Has there been a partition of homestead amongst the co-sharers?" On analysis of the evidence produced before him the trial court recorded his finding on this issue in the following manner :