A suit for partition of joint holding abates under Section 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, as the Consolidation Authorities have the power to effect partition of joint holdings under Section 7 (1) of the Act.

Judgement

ORDER :- This revision is directed against the order dated 29-7-1980 by the Subordinate Judge, Bargarh in Title Suit No. 91/70 holding that the suit abates in part under S.4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the Act ).

Before coming to the facts relevant for the purpose of the case it will be helpful to give the genealogy showing relationship between the parties: The petitioner along with opposite parties 4, 5 and 6 filed the suit praying for the following reliefs :-

(a) Partition of the suit properties by metes and bounds and allotment of the due share to the plaintiffs and defendants;

(b) Adjustment of equity so far the profits accrued, accruing or shall accrue from the suit properties after account is taken;

(c) Costs of suit and future interest; and (d) Any other relief as per law, equity and good conscience;

The gist of the case of the plaintiffs was that Late Dhanpati Dash as the father and Karta of his family effected a partition of his joint family properties amongst the different co-sharers and coparceners by a registered deed of partition on 26-6-1954 retaining a share for himself which constitutes the disputed properties in the suit. This partition was later on modified by an award dated 20-8-1959, by arbitrators appointed by the parties. Dhanpati was possessing his share separately in his own right and title till his death on 8-12-1954 whereafter his share of the properties was allowed to be possessed by his widow Sriya to be enjoyed by her during her lifetime for her maintenance. Sriya having died on 24-8-1975 the share of Dhanpati possessed by Sriya as a limited owner devolved on her two sons Shiba Prasad and Kalicharan who were then living and Bairagi Charan and Premalata the son and daughter of her predeceased son Bhakta Prasad. Shiba Prasad transferred his interest in the suit properties in favour of the plaintiffs by a registered deed of gift dated 31-3-1976 and since then the plaintiffs have become owners and co-sharers of the suit properties to the extent of the share of Shiba Prasad. The plaintiffs having thought it convenient to partition the suit properties by metes and bounds gave a notice for this purpose to the defendant but the defendants failed to take any action in pursuance to the said notice. According to the plaintiffs they have jointly 1/3rd share appertaining to the interest of Shiba Prasad Dash in the suit properties, defendant No. 1 has 1/3rd and defendant Nos. 2 and 3 each has 1/6th share in the suit properties.

Defendant No. 1 (opposite party No. 1) in his written statement denied the averments in the plaint. According to him, the suit properties except H. S. Plot No. 1263 appertain to the share that was allotted jointly to late Dhanpati Dash and Sriya Dash in the partition effected by the deed of partition dated 20-6-1954 and registered on 6-4-1974. Since then both Dhanpati and Sriya were in joint possession of the said properties. On the death of Dhanpati on 8-12-1954 Sriya continued to possess that said properties alone in her own right, title and interest. H. S. Plot No. 1263 was acquired by late Sriya by way of exchange from her son late Bhakta Prasad and was being possessed by her in her own right, title and interest. After coming into force of the Hindu Succession Act, by virtue of Section 14 thereof Sriya became the absolute owner of the suit properties and possessed the same as such till her death on 24-8-1975. While so possessing the suit properties Sriya disposed of the same by a Will dated 17-9-1973 executed in favour of defendant No. 1. Since the death of Sriya defendant No. 1 has been possessing the suit properties in his right, title and interest. According to the defendant No. 1, Shiba Prasad never had any right over the suit properties and consequently the alleged deed of gift by Shiba Prasad in favour of the plaintiffs does not confer any right over the suit properties.

2. On the ple