JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against a reversing judgment in a suit for partition.

2. The following genealogy would show the relationship of the parties.

3. According to the plaintiff, the common ancestor Baji Sahu had lands at village Purunagarh and Sanabaliposhi. Schedule ‘A’ land was acquired in the name of defendant no.1 with the aid and assistance of the joint family fund. When the dissension cropped up in the family, the properties were partitioned in February, 1959 by the village gentries. Schedule ‘A’ property along with other ancestral properties were divided into two equal shares. Since then, schedule ‘A’ properties were possessed by the parties separately without any partition by metes and bounds. In the year 1981, the defendant no.1 stacked claim over ‘A’ schedule properties. According to the plaintiff, he is entitled to half share. With this factual scenario, he instituted the suit.

4. The defendants entered contest and filed written statement. They pleaded inter alia that schedule ‘A’ land was not acquired with the aid and assistance of joint family fund. The same was acquired by the defendant no.1 after partition. In the year 1959, the Panch members partitioned the joint family properties. Since then, each of the brothers was living separately in mess. The plaintiff had not been allotted any share out of schedule ‘A’ land. The defendant no.1 was in possession of the same throughout. It was further pleaded that the suit for partial partition is not maintainable.

5. On the interse pleadings of the parties, learned trial court struck twelve issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court decreed the suit preliminarily and allotted half share to the plaintiff in the schedule ‘A’ land. Assailing the judgment and decree, the defendants filed T.A. No.21/11 of 1984 before the learned Additional District Judge, Sambalpur. Learned appellate court came to hold that there was a partition of joint family properties between the plaintiff and defendant no.1. The plaintiff had admitted in the evidence that the properties were partitioned in two equal shares. The same was reduced into writing in presence of his father and other local gentries. The plaintiff, defendant no.1 and panch members signed on the same. The recitals of partition deed, Ext.5/C shows that there was complete partition of the joint family properties including schedule ‘A’ property. The factum of previous partition is also crystal clear from the document vide Ext.E/6 signed by the parties. The recitals of Ext.E/6 shows that since there was quarrel between the brothers over their threshing floor, the same was divided into two equal shares and each brother was allotted a share. Further the panch faisala dated 21.6.62 Ext.F/1 shows that on the request of Baji Sahu some lands were allotted to defendant no.1. It further held that there was complete partition of all joint family properties including schedule ‘A’ properties between the parties. Thus the suit for partial partition is not maintainable. Held so, it allowed the appeal.

6. The second appeal was admitted on 13.7.1988 on the following substantial question of law.

“Whether on the pleading of the plaintiff that there has been no partition and of the written statement that the property in dispute is self acquisition not liable for partition there was scope for a finding of previous partition ?”

7. Heard Mr. S.K. Samantary, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. S.K. Pattnayak, learned counsel on behalf of Mr. P.K. Pattanaik, learned Senior Advocate for the respondents.

8. Mr. Samantaray, learned counsel for the appellants submitted that there was a partition in the joint family properties. The same was reduced into writing. Schedule ‘A’ properties were acquired by defendant no.1 with the aid and assistance of the joint family fund. The same is the joint family property. The propert