P. K. MOHANTY, J.

( 1 ) PETITIONER and opposite party No. 1 are brothers, the former being the elder and opposite party No. 2 is their mother. Opposite party No. 1 filed O. S. No. 51 of 1970 in the Court of the Subordinate Judge, Nayagarh against the petitioner and opposite party No. 2 for partition of 13. 52 acres of land and 3 preliminary decree was passed directing partition of the properties into three equal shares and allotment of one such share to each of the parties. During the final decree proceedings the opposite party No. 1 filed a petition on 5-9-73 praying for a direction to the Commissioner to adjust to the share of the petitioner 1. 97 acres of lands alienated by him to third parties prior to the suit. The petitioner and opposite party No. 2 filed counters contending, inter alia, that the opposite party No. 1 had also transferred 0. 36 acre of lands to one Arakhri Naik prior to the institution of the suit and that those lands should be adjusted to his share. The learned Subordinate Judge on a consideration of the oral and documentary evidence produced by the opposite party No. 1 came to hold thai 0. 50 acre of land out of plot No. 102 under Khata No. 234 and 0. 23 ac