DAS, J.

( 1 ) DEFENDANT No. 1 has filed this appeal against a decision dated the 16th May, 1959 of Sri R, C. Kar, Second Additional Subordinate Judge of Cuttack, in Title Suit no. 21/55.

( 2 ) THE facts giving rise to this appeal may be stated as follows : One Madhab behera bad three sons, Kapila, husband of Hira (D-3), Bhikari (D-1) and durjodhan (D-2 ). The disputed property is admittedly a residential house situated on the main road at Ranihat, in the town of Cuttack. Madhab Behera was residing in the said premises and on his death his three sons were in possession of the same. Kapila the husband of defendant No. 3 died sometime in 1942 leaving his widow Hira Bewa (defendant 3 ). Dharmananda Natia the plaintiff in this case obtained a Kabala from defendant No. 3 on 15-6-44 for a consideration of Rs. 100/- in respect of one third share of the disputed dwelling house, his case being that there was a previous partition between Kapila and his two brothers and kapila, was given the eastern block, Bhikari the, present appellant the western block and Durjodhan was given the middle block and Kapila's widow being in separate possession of the specific one-third-interest sold the same t