In a suit for partition, all ancestral properties and necessary parties must be included. Failure to do so renders the suit not maintainable.

Judgment

R. DASH, J.

The unsuccessful plaintiff in both the fora below has preferred this Second Appeal challenging the judgment and decree dated 9.10.2009 and 24.10.2009, respectively, passed by the learned 1st Additional District Judge, Cuttack in R.F.A. No.106 of 2008 confirming the judgment and decree dated 19.8.2008 and 30.8.2008, respectively, passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in C.S. (I) No.9/2007 dismissing the Suit.

2. The appellant as plaintiff filed the Suit seeking partition of plaint Schedule ‘A’ property with further prayer for permanent injunction. Plaintiff’s case, in nutshell, is that plaintiff and D.1 to D.3 are the successors-in-interest of late Subudhi Panda who had three sons, namely, Dharamu, Bhikari and Natabar. While they were in jointness, Natabar died issueless. Plaintiff is the only son of Bhikari. D.1 to D.3 are the three sons of Dharamu. Out of the rest of the defendants, D.7 is the wife of D.2. D.4, 5, 6 and 8 to 11 are strangers to the family against whom no relief is claimed but since their names appear in the R.O.Rs., they have been arrayed in the suit. However, the plots recorded in their names have been excluded from the plaint Schedule as neither the Plaintiff nor the defendants claim any interest therein. It is further pleaded that as yet there is no partition of the plaint schedule properties by metes and bounds, but plaintiff and D.1 to 3 are in separate possession of different plots as per their convenience. In respect of the homestead plots, their respective possession has been correctly reflected in the R.O.R. but in respect of some of the agricultural lands, note of possession has not been made correctly. For example, it is pleaded, Suit Plot No.832 under Khata No.155 though owned by the plaintiff as well as D.1 to D.3, the latters are wrongly shown to be in possession thereof and taking advantage thereof they have arranged persons to dispose of the land pertaining to that plot.

3. D.1 to 3, who are respondent Nos.1 to 3 in this appeal are the contesting defendants. Others have been set ex-parte. In their written statement, contesting defendants have challenged plaintiff’s claim contending that the suit properties are not the entire of the properties of the joint family and that with an ulterior motive the plaintiff has excluded some of the joint family properties. That apart some of the coparceners/co-sharers have also been left out. It is further pleaded that there has already been a partition of their joint family properties and for that the present suit is not maintainable. In respect of Plot No.832, it is their specific plea that on 10.5.1992 in presence of village gentries there was a ‘panch faisalanama’ evidencing that the plaintiff’s share in that Plot has been relinquished in favour of D.1.

4. Taking note of the pleadings of the parties, the learned Civil Judge framed seven issues and after recording evidence adduced by the parties and analyzing the same, learned trial court dismissed the suit accepting the defence plea that the entire of the joint family property was not brought to the hotchpot and that all the persons interested in the suit properties were not impleaded as parties to the suit. Learned lower appellate court affirmed the findings of the learned trial court and dismissed the First Appeal.

5. The Second Appeal is admitted on the following substantial question of law: “Whether the courts below are justified in saying that suit failed due to non-joinder of necessary and proper party due to non-impletion of daughter of Api Panda.”

Learned counsel for the appellant has reiterated his stand taken before the First Appellate Court that the conclusion of the learned trial court on the point of non-joinder of necessary parties and non-inclusion of all the properties are not sustainable in law, inasmuch as the properties that have linkage with the parties to the suit have been brought to the hotchpot and a suit for partition of such propert