JUDGMENT

The appellants in this appeal have assailed the judgment and decree passed by the learned Subordinate Judge, Nayagarh (as it was then) in T.S. No.107 of 1988, decreeing the suit in part in passing a preliminary decree for partition entitling the appellant to half share in respect of the properties described in ‘Schedule-A’ of the plaint and refusing to grant any relief of partition in respect of ‘Schedule-B’ and “Schedule-C” properties.

For the sake of convenience to avoid confusion and for proper appreciation, the parties hereinafter are being referred to as they have been arrayed in the original suit.

It is pertinent to state that one Matiani Sahoo was the original plaintiff and on account of her death during the pendency of the suit, her legal representatives having been substituted prosecuted the suit and are now on appeal being aggrieved by that part of the preliminary decree as stated above.

2.The case of the plaintiffs is that one Mahadev had two sons namely; Bauri and Nityananda and the parties being Hindus are governed by Mitakhara School of Hindu Law. These two brothers had formed the joint family. It is stated that the they during their life time had separated from each other in mess and estate after 1932-33 settlement and they were possessing separate parcels of land out of the land described in ‘Schedule-B’ of the plaint. It is next stated that there was no partition between them in metes and bounds. The original Plaintiff is the daughter of Nityananda whereas the Defendant No.1 is his adopted son and Defendant No.2 and 3 are the two sons of Bauri. The ‘Schedule-B’ property is said to be the joint family property and accordingly it is asserted that plaintiff along with Defendant No.1 to be having half over it where as Defendant No.2 and 3 are said to be entitled to the rest. So far ‘Schedule-A property is concerned, the same is claimed to be the separate and self-acquired property of Nityananda. ‘Schedule-C’ property are said to be the movables of the joint family and therefore, the plaintiffs claim half share along with the Defendant No.1- over the same.

It is further case that 10 years prior to the presentation of the plaint Nityananda died and original plaintiff Matiani then repeatedly requested the Defendant Nos.2 and 3 for partition of schedule property which was deferred on various pretexts. Thereafter, lastly when it was not acceded to on 26.06.1987, she had to file the suit.

3.The Defendants contested the suit by filing joint written statement. While traversing plaint averments, it is averred that the plaintiffs who have been substituted in place of Matiani the original plaintiff are not her legal heirs and as such they are not entitled to any relief. It is stated that Defendant No.1- had purchased Ac.01.25 decimals of land from Sankhua, Amin and Manga in the name of his sister Matiani towards her share over the property by registered sale deed dated 6.6.1975 and she relinquished her interest over the said property in Schedule A and B while agreeing not to claim any share over that property. It is further stated that the original plaintiff has got Ac.01.78 decimal towards her share under Khata No.248, Plot No.2011 in village: Lunisara and that she, having already got the properties towards her share is no more entitled to any share from the land described in the schedule of the plaint and so also these plaintiffs. It is also asserted that there has been complete and final partition in metes and bounds between Nityananda and Bauri and as such they challenged the maintainability of the suit. As regards the movables described in Schedule ‘C’ of the plaint, those are said to be imaginary and thus the claim on that score has been termed as fanciful.

4.On such rival pleading the trial Court framed as many as five issues such as the maintainability of the suit, existence of cause of action, prior partition between the parties, the status of the present plaintiffs and appears to have rightly gone to take up the