IMPORTANT POINT
A joint family is presumed to remain joint unless a clear severance of status is proven, even without a physical division of property.

JUDGMENT :

ARVIND KUMAR VERMA, J.

1. This second appeal under Section 100 of the CPC has been preferred by the sole plaintiff/appellant herein against the impugned judgment and decree passed by the learned First Appellate Court in Civil Appeal No. 21-A/2013 (Annexure A/1) whereby allowed the appeal filed by the respondent/defendant by setting aside the judgment and decree of the trial court dated 30.08.2010 passed by the Second Civil Judge Class-1 Janjgir, District Janjgir-Champa in Civil Suit No. 999-A/2005.

2. The appeal was admitted by formulating the following substantial questions of law:

“Whether the finding of the First Appellate Court regarding earlier partition is perverse?”

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]

3. The facts necessary for disposal of the present appeal in brief are that the appellant/plaintiff had instituted a suit before the trial Court which was registered as Civil Suit No. 999-A/2005 for possession of the suit land as per Schedule ‘B’ of the plaint or partition of the joint family property as mentioned in Schedule ‘A’ of the plaint and separate possession of half share should be given to the plaintiff.

4. The plaintiff has obtained the suit land vide order dated 04.08.1982 passed by the Tehsildar in a Revenue Case No. 3-A/27/1979-80 but the defendant Nityanand (deceased) managed to mutate the land in his name in revenue records along with his share detailed in Schedule C of the plaint. It is admitted fact that the plaintiff and defendant Nityanand (deceased) are real brothers and the original defendant (Nityanand) died during the pendency of the appeal and the present respondents are the legal heirs of the defendant Nityanand.

5. Defendant Nityanand denied the averment of the plaint and contended that the earlier order for partition has been set aside in appeal No. 1-A/27/1982-83 before Sub Divisional Officer, Janjgir vide order dated 30.12.1983 and further contended that in the proceedings u/s. 145 Cr.P.C. before the SDO, the defendant obtained the possession of Khasra No. 1231 area 2.06 acres and Khasra No. 1222 area 0.09 acres as per compromise in M.Cr.C. No. 380/1983 dated 24.07.1985 hence, the suit is barred by limitation and the suit for repartition of the said land is not maintainable.

6. Learned trial court decreed the suit for partition and directed to initiate the proceeding under Section 54 of the Civil Procedure Code for obtaining separate possession of the land detailed in Schedule-A to the extent of half share. That the trial court further held that the earlier partition has not been given effect to as after the remand order passed by the Sub divisional Officer vide order dated 30.12.1983 as the parties failed to appear before the Tehsildar and therefore there is no final order for partition. That the compromise entered before SDO in a proceeding under Section 145 Cr.P.C. (Ex.D-3) does not confer title on the parties but only declares the possession two months prior to preliminary order hence decreed the suit for partition.

7. In the appeal, learned first Appellate Court set aside the judgment and decree passed by the trial court on the ground that the prior partition has been proved therefore the suit for partition is not maintainable. The learned first Appellate Court held that the trial court has dismissed the suit for possession against which no appeal has bee preferred by the plaintiff hence no decree for possession may be granted.

8. The learned Appellate court allowed the appeal despite of the fact that the land detailed in Schedule-A of the plaint has been partitioned by the Tehsildar but in the appeal, the partition order passed by the Tehsildar has been set aside and in absence of final order relating to partition in possession of the parties is simply family arrangement between the parties and therefore the suit for partition is maintainable.

9. Learned counsel for the appellant/plaintiff ve