JUDGMENT :

The appellant in this appeal calls in question the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 27 of 2004 filed by the respondents being the unsuccessful plaintiffs in the trial court.

The respondents as the plaintiffs had filed the suit for partition of the land described in the schedule of the plaint in the Court of learned Civil Judge (Sr. Division), Keonjhar. That having been dismissed, they had carried the appeal. The lower appellate court has allowed the appeal which has resulted in decreeing the suit preliminarily declaring share of the parties over the suit schedule property. Now, therefore, the defendant no. 1 being aggrieved by the same has filed this appeal under section 100 of the Code of Civil Procedure.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. Plaintiff’s case is that one Halu Patra is the common ancestor of the parties. He died leaving behind two sons namely, Puria and Pitei. Defendant no. 1 and 2 are the son and daughter of Puria respectively. Pitei had two sons namely, Narayan and Jadu. Narayan is dead and plaintiff no. 1 and 2 are his successors. Plaintiff No. 3 is the widow of Jadu. The plaintiff no. 4 to 8 are the sons and daughters of Jadu.

It is stated that the suit land belong to Halu. On his death it devolved upon Puria and Pitei and finally upon the plaintiffs and defendant no. 1 and 2. Although notes of possession in the remark column of the record of right in respect of plot no. 13, 94 and 95 stand in the name of defendant no. 3 and 4, yet it is stated that they had never possessed nor are in possession of those lands. However, they have been made parties as a measure of caution. It is next stated that there being inconvenience in possession of the suit land by the parties, the plaintiffs approached defendant no. 1 and 2 for partition and that request ultimately having not been acceded to, the suit has come to be filed.

4. The defendant no. 1 contested the suit by filing written statement. It is his specific case that the suit land is not the only property of Halu and he was having more lands in addition to the same. It is alleged that plaintiff’s branch having already sold lands to different persons, the present suit has been filed for partition of the remaining land without disclosing all those details. It is stated that Narayan and Jadu had transferred some lands to the father of defendant no. 1 and Pitei had sold land measuring Ac. 10.1/2 decimals to Rupa Bewa who is dead and now is survived by her son who is possessing the suit land. It is further stated that Pitei had also sold Ac. 14.1/2 decimals of land to one Ballav Sahu who too being dead, his son Maguni is possessing the same. It is next stated that Pitei had sold some goda land also to one Ballav Sahu. All these alienations are said to have taken place after the amicable partition. So, it is stated that plaintiffs are not having any further interest over any suit land so as to claim partition of the same.

5. The trial court in view of above rival pleadings, framed five issues. Rightly taking up the issue relating to maintainability side by side as regards the interest of the plaintiffs over the suit land and the issue of partibility of the suit land, ultimate answer on all those have been recorded against the plaintiffs. The decisions on the above issues resulted the dismissal of the suit.

6. In the first appeal, the lower appellate court in view of the challenge before it, examining the evidence has found the defendant no. 1 to have failed to establish the case of prior partition. So, taking a view that a suit for partial partition comprising some joint family property is maintainable, it has gone to set aside the finding of the trial court and finally has proceeded to decree the suit preliminarily as aforesaid.

7. The appeal has been admitted on the following sub