The main legal point established in the judgment is that oral evidence can establish the fact of partition, and the failure to produce a partition memorandum does not preclude the party from proving the partition through other means. Additionally, the judgment clarified the application of the Hindu Succession Act in determining property rights.

Dhirendra Mishra, J.

1. First Appeal No. 52/2006 preferred by the original defendants No. 2, 3 and legal representatives of defendant No. 4 and First Appeal No. 55/2006 preferred by the defendant No. 1 are being disposed of by this common judgment as both the appeals are arising out of the judgment and decree dated 25th February, 2006 passed in F. A. No. 50A/84 whereby learned First Additional District Judge, Raigarh has decreed the suit filed by the Original Plaintiff Jagannath Agrawal for recovery of possession of the suit house and decree of declaration of the title of the plaintiff over the agricultural lands described in Schedule 5 of the plaint.

2. Plaintiff Jagannath Agrawal and defendant No. 4 Govind Ram died during pendency of the suit whereas defendant No. 1 died during pendency of the appeal.

(Parties hereinafter shall be referred to as per their description before the trial Court.)

3. Relationship between the parties in the suit is not in dispute. Plaintiff Jagannath, defendant Baijnath and late Ramkishan, husband of defendant No. 2 and father of defendants No. 3 and 4 were sons of Jainarayan Agrawal. Ramkishan died in the year 1967.

4. The case of the plaintiff in brief is that the House No. 46, Raigarh situated in front of Police Kotwali, Gandhi Ganj Ward 15 and other Pakka houses in all 8 in number and 2 Kachcha houses were acquired property of late Jainarayan and 30 acres of land, cash, gold ornaments etc. acquired by Jainarayan Agrawal was property of the joint family. During lifetime of late Jainarayan Agrawal, Ramkishan Das and Baijnath expressed their desire of doing independent business after separating from the family due to domestic quarrels in the family and, therefore, late Jainarayan on Kartik Badi 13, Samvat 2005 (year 1949) with the consent of his three sons, affected oral partition of all the movable and immovable properties and separated Ramkishan Das and Baijnath from the joint family after giving them their share, however, the younger son Jagannath Agrawal remained joint with the father. Since then, the defendant No. 1 and Ramkishan Das are independently in the possession of their respective shares. A memorandum of partition was recorded on Asarh Sudi 2 Samvat 2006 and the same was signed by Late Jainarayan and witnesses Hariprasad Agrawal, Laxminarayan Agrawal, Birkhman Agrawal and Gopiram, however Hariprasad Agrawal and Laxminarayan Agrawal have died. Late Ramkishan Das and defendant Baijnath also gave acknowledgment of receiving their shares. Since the plaintiff was young boy at the time of oral partition, he continued to live jointly with his father. In the said partition, apart from cash and jewelry and other house hold utilities, Ramkishan Das given three Pakka Houses in the city of Raigarh whereas defendant Baijnath was given one Pakka house of Sadar Bazar and two Pakka houses situated over Khasra No. 1460 and 1462. In the said partition, Jainarayan kept the remaining two Pakka Houses, two Kachcha houses and 30 acres of agricultural land situated in village Beladula for himself and his son Jagannath. Apart from this, the responsibility towards loss and profit of Firm Pannalal Jainarayan fell in the share of late Jainarayan and the plaintiff. Since the house allotted in the share of Baijnath was not fit for residential purposes, Baijnath was allowed to live in the house No. 46 situated in Ward No. 15, Gandhiganj, Raigarh (the suit house) purely as a licensee. In the meanwhile, mother of the plaintiff died in the year 1959 and father Jainarayan died on 14th January, 1961 and after their death, the plaintiff became absolute owner of the joint property of Jainarayan and Jagannath. After the death of the father, plaintiff went to Kolkata and Siligudi in the year 1963-64 for doing business. The records pertaining to the house were mutated in the share of respective share holders in the year 1949 itself without any objection of the defendants or late Ramkishan Das. In April, 1983, the plainti