BALUNKI PRADHAN Vs. BENUDHAR PRADHAN

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff for partition. The defence contention is that there was previous partition and that assuming that there was no partition, all the properties are not included in this suit for partition nor were the purchasers from the joint family impleadcd. Both the Courts below found that there was no previous partition of the suit properties and decreed the plaintiff's suit accordingly for partition.

(2.) THE material facts are these : Sanatan and Ananda were two brothers. Sanatan died leaving him surviving his widow defendant No. 5 Maguni and three sons, namely, plaintiff Benudhar, Defendant No. 3 Pira and minor defendant No. 4 panchu. Sanatan's brother Ananda also died leaving him surviving his widow defendant No. 2 Labanya and son defendant No. 1 Balanki who is the appellant in this second appeal. The main reliefs prayed for in paragraph 7 of the plaint are these : (a) The properties mentioned in Schedule 'a' be partitioned by mates and bounds through a Commissioner appointed by the Court and the plaintiff be given separate possession of his share of lands through court. (b) The lands mentioned in schedule 'c' and 'd' be excluded from partition and the 'b' sch. lands be adjusted to the share of the defendants Nos. 1 and 2 and the 'e' schedule lands be adjusted to the share of the plaintiffs and the defendants 3, 4 and 5 and let it adjudged that Sudarsana Pradhan being unheard of for more than 10 years has died a civil death from the family of the plaintiff and the defendants 8, 4 and 5.

(3.) THE appellant-defendant No. 1 Balunki contested the suit. His contention is that the entire family properties had been partitioned between Sanatan and Ananda, that they were in separate possession of their respective shares till their death, and that after their death, the parties inherited the shares of their respective fathers and separately possessed the same. It was, however, conceded by the appellant-defendant that some homestead lands were not partitioned at the time of the previous partition between Sanatan and Ananda; and that the purchasers have been in possession of some lands in their right, title and Interest. That apart, the maintainability of the present suit for partition in its present form, was also challenged on the ground that the necessary parties were not impleaded and the entire properties have not been brought into hotch pot. The defendant-appellant's mother defendant No. 5, Labanya supported him. The other defendants 3 to 5 supported the plaintiff's case.