JUDGMENT

D. DASH, J : In this appeal the defendants of Title Suit No. 13 of 1982 of the Court of the Learned Subordinate Judge, Nayagarh (as it was then) have filed are challenging the final decree passed in the said suit after an order upon acceptance of the report of the Civil Court Commissioner and making the preliminary decree final.

2.For the sake of convenience, clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below.

3.Facts necessary for disposal of this appeal are as under.

Respondent No. 1 as plaintiff filed a suit for partition of the properties belonging to the joint family. The extent of land which is the subject matter of the suit is Ac. 6.059 dec. situated in three different Mouza described in the schedule ‘A’ and ‘B’ of the plaint. The movables described in the schedule ‘C’ of the plaint are also the subject matter of the suit.

The admitted inter se relationship between the parties is that one Parikhita Sathua had two wives, namely, Kaincha and Hara. The plaintiff and defendant no. 7 are the son and daughter of Parikhita through Hara whereas defendant Nos. 1 to 5 are the children of Parikhita born thrugh wife Kaincha and defendant No. 8 is the daughter of defendant no. 1. In the said suit ultimately preliminary decree for partition was passed on 16.09.1986. thereafter the said preliminary decree has been made final upon acceptance of the repot of the survey knowing Commissioner, when he was found to have completed the job as ordained by the preliminary decree in allotting immovable properties to different parties in conformity with that. The same is now challenged in this appeal on the grounds as indicated in the memorandum of appeal. The important of those being culled out are the followings:-

a)The division is illegal and unsustainable, inasmuch as, the appellants (defendants) have not got their legitimate share from the lands of Itamati and Pratap Prasad which are most valuable, with house and homestead;

b)The division is illegal, inasmuch as the share allotted to defendant no.1 only contains a cowshed the valuation of which has been acquired with the pucca structure;

c)The defendant No. 1 being the eldest member, he should have been given his share from the eastern portion of the homestead land;

d)Land under Plot No. 192 should have been divided according to the convenience of the parties; and

e)The defendant No. 1 having a large family and only 2 decimals of homestead land when has been allotted to him the same cannot go to accommodate the family and hence more homestead lands should have been allotted to him.

4.Learned counsel for the appellants in course of hearing just reiterated these grounds and his ultimate submission is for setting aside the final decree and remitting the matter back to the Court bellow for deputation of a survey knowing Commissioner afresh for allotment of the land to the parties in accordance with their respective share as determined in the preliminary decree, respecting possession of the parties and looking to their convenience as far as practicable and possible.

5.Learned counsel for the respondents vehemently refuted the said submission. According to her, the grounds of challenge made to the final decree are all vague. He submitted that each of those have been duly taken care of and addressed to by the original Court and finally viewing the best interest of all the parties looking at all practical angles, the final decree has been passed. According to her this move of filing of appeal is only to unnecessarily protract the litigation as much as possible so as to see that the lis does not attain its finality and the parties in advantageous position continue in that way where as those disadvantageous are ruined and ultimately deriving frustration no more pursue.

6.On such rival submission, it is now necessary to examine as to whether the grounds as stated above are legally tenable to upset the final decree passed in the suit.