In a suit for partition, the burden of proof lies on the defendant to establish prior partition, and the position of the parties is interchangeable.

JUDGMENT :

The unsuccessful defendant no. 1, 8 and 9 in Civil Suit No. 24 of 2006 (C.S. No. 19/2005 of Civil Judge (S.D.) Jeypore) on the file of learned Addl. Civil Judge (F.T.C.), Jeypore have filed this appeal.

They question the judgment and preliminary decree passed in the suit declaring the property under holding no. 17 of village Chandili and holding nos. 61 and 45 of village Dhanpunji to be liable for partition; holding the entitlement of the plaintiff (respondent) therein to 1/3rd share; defendant no.1 to 3 (appellant no. 1 & respondent no. 2 and 3) to be having 1/3rd share and defendant no. 4 to 7 (respondent no. 4 to 7) with the rest 1/3rd share.

It is pertinent to mention here that appellant no. 1 having died during pendency of this appeal, by order dated 25.08.2015 his name has been expunged as dead, in presence of appellant no. 2 and 3 representing his estate.

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. The plaintiff’s case is that one Somanath is the common ancestor of the parties. He had three sons namely, Khagapati, Jituru and Saraju; all are dead. Plaintiff is the only son representing the branch of Jituru. The defendant no. 1 to 3 represent the branch of Khagapati, whereas rest of the defendants are the legal heirs and successors of Saraju. It is stated that Somanath had landed property in village Chandili and these lands are thus ancestral properties of the parties. It is further stated that there had never been any partition of the same amongst the parties. When in the year, 2005, the plaintiff went to have his agricultural operation over the land, the defendant no. 1 created trouble. The plaintiff then suspected some foul play in the matter. So, he convened a village panchayati and there he demanded partition. The defendant no. 1 resisted the claim of partition advanced by the plaintiff and openly declined to part with the said land. The plaintiff then could learn that when some dispute had arisen amongst the three sons of Somanath, the defendant no. 1 taking advantage of the same has managed to mutate the suit land exclusively in his favour on 26.06.1972 although the original record was then standing in the name of three sons of Somanath. So the plaintiff filed the suit.

4. The defendant no. 1 in the written statement, though admitted the genealogy showing the inter se relationship amongst the parties, has denied the nature of land involved in the suit to be ancestral. He stated that Somanath had other lands which he had acquired at village Dhanpunji in the State of Chhattisgarh. It is his further case that after death of Somanath in between year 1950 to 1958, there was an oral partition amongst the sons of Somanath and each branch having got their respective shares in the said amicable division continued to possess those separately. It is stated that by a family settlement deed in the year 1961, he himself, his father and the plaintiff’s father have divided the landed properties. In that partition, defendant no. 1 got the entire suit land in his share and accordingly, he has mutated the same. It is further stated that, he in turn had divided those properties with his sons. All these are said to be within the knowledge of the plaintiff and other defendants. It is further stated that the plaintiff and his father were independently dealing with their properties and sold their properties to different persons; which are also the land of Somanath. It is alleged that the plaintiff has not brought all the properties to the hotchpot which include the properties at Dhanpunji under holding no. 61; holding no. 41; holding no. 45; holding no. 27 and holding no. 8. It is further claimed that defendant no. 2 and 3 have got their share over the land of village Lohanja, Devuda and other places.

In view of the above, defendant no. 1 has also made a counter claim for partition of all the propertie