JUDGMENT

A. K. PARICHHA, J. — This is an appeal by defendant No.1 against the judgment and decree of the learned Subordinate Judge, Bhawanipatna in T.S. No.11 of 1975 filed by Respondents Nos. 1 to 3 as plaintiffs for declaration of their right, title and inter¬est over the Schedule ‘B’ lands and confirmation of possession or in the alternative for recovery of possession of the same.

2. One Hari Saraf had two sons, namely; Sitaram and Jata. The plaintiffs are the sons and legal heirs of late Sitaram. Defendant No.1 and late Sadhu were the sons of Jata. Defendant No.2 is the son of late Sadhu. The case of the plaintiffs in essence was that in the year 1934-35 Sitaram acquired Ac.25.92 decimals of land appertaining to Khata No.17/2 in village Saras¬guda and another piece of land measuring Ac.0.64 dec. in the name of Late Sadhu. He also acquired some more land in village Chichia and all those lands were treated as joint family properties. According to the plaintiffs, in the year 1937 there was a family partition between Sitaram in one hand and the sons of Jata on the other hand wherein Sitaram retained the lands situated in village Chichia towards his share while Lingaraj and Sadhu got the lands in village Sarasguda as their share and accordingly, Sitaram remained in possession of Schedule-B lands whereas defendants remained in possession of Schedule-A land noted in the plaint. But during settlement operation as Sitaram was old and ailing and the plaintiffs were minors, defendant No.1 was looking after the settlement operation and taking advantage of the situation he got his name recorded in respect of the Schedule-B land and thereaf¬ter threatened to disturb the possession of the plaintiffs over that land, for which they had to file the suit seeking the above mentioned reliefs.

3. The present respondent No.4 as defendant No.1 filed written statement denying alleged partition in 1937 and pleaded, inter alia, that Sitaram wanted to take Late Sadhu in adoption as he had no son and for that reason, Sadhu was living with Sitaram and was enjoying the properties of Sitaram jointly with Sitaram. He claimed that on 20.2.1939 Sitaram executed a deed of partition allotting the lands in village Chichia including Schedule ‘B’ land to him (defendant No.1) and obtained approval of the then Rani Saheba, who was the ruler of the State, for such division and accordingly, since 1939 he (defendant No.1) is in peaceful possession of Schedule ‘B’ land while plaintiffs are in posses¬sion of the share of land of Sitaram. Defendant No.1 further pleaded that Sadhu was not given any share in the partition of 1939 as he was living with Sitaram as his adopted son. In es¬sence, defendant No.1 claimed that plaintiffs have no right, title or possession over the Schedule ‘B’ land and that he is the sole owner in possession of that land.

4. Defendant No.2 got himself impleaded as a party by filing a petition under Order 10, Rule 1, C.P.C. He filed sepa¬rate written statement pleading therein that there was never any partition in the family at any time and that the family still continues to be joint. He claimed that his father Late Sadhu being one of the sons of Jata had a share in the family property and accordingly, he is entitled to 1/4th share in the entire family property.

5. On the pleadings of the parties, learned trial Court framed 12 issues. The plaintiffs examined five witnesses and produced documents, which were marked as Exts. 1 series, 2 and 3, defendant No.2 examined himself, but produced no document, de¬fendant No.1 examined himself and some witnesses and produced documents which were marked as Exts. A to H. On consideration of these evidences, learned Trial Judge came to the conclusion that defendant No.2 was never taken in adoption by Sitaram as alleged by defendant No.1, that the alleged partition in 1937 claimed by plaintiffs was not established, but there was partition between Sitaram and defendant No.1 in 1939 where Schedule ‘B’ properties f