The presence of subsequent purchasers in a partition suit can advance complete and satisfactory adjudication of the subject-matter in controversy.

JUDGMENT :

Sanju Panda, J. - Since common questions are involved in both the Writ Petitions, they were heard together and are being disposed of by this common Judgment.

2. Both the Writ Petitions arise out of Title Suit No. 130 of 1980-I filed by present Opposite Parties 1 to 3 in the Court of Learned Civil Judge (Senior Division), Bhadrak for partition claiming 3/8th share. For better appreciation, the genealogy of both the parties is given below:

GENEALOGY

Sk. Manohar Ali

Sk. Asgar Ali

Jaheda ' Jabeda Bibi (wife) (D.3)

Sk. Akbar Ali (D.1) : Sk. Umar Ali (D.2): Fatema Bibi (Plff. 1) : Sayera Banu (Plff.2) : Ayesha Sultana (Plff.3)

From the above genealogy, it appears that Sk. Manohar Ali had one son, namely, Sk. Asgar Ali who died leaving behind his widow Jaheda ' Jabeda Bibi, Defendant No. 3- present Opposite Party No. 6 and two sons, namely, Sk.Akbar and Sk. Umar- Defendants 1 and 2 who are present Opposite Parties 4 and 5 in W.P.(C) No. 11179 of 2004 and three daughters who are the Plaintiffs. As per the Plaintiffs' case, the immovable properties described in Schedules 'Kha', 'Ga', 'Gha' and 'Cha' and the movable properties described in Schedule 'Una' belonged to Sk. Asgar Ali. Properties described in Schedule 'Cha' were acquired by the Transport and Railway Departments and compensation granted by those Departments was received by Defendants 1 and 2. There is a Lodging house and some other houses/shops standing in Schedule 'Chha' properties which has been rented out and rent amounting to Rs. 4,99,500 is being collected by Defendants 1 and 2. Plaintiffs claim 6 annas interest in all the properties mentioned in Schedules 'Kha', 'Ga', 'Gha', 'Cha' and 'Una' and as rent collected from the Schedule 'Chha' properties was never partible, the Plaintiffs filed the suit for partition and separate possession.

3. Defendants 1 and 2 filed their written statement controverting the Plaintiffs' claim in Schedule 'Kha' properties. They specifically averred that Schedule 'Kha' property belonged to their grand-father late Sk. Manohar Ali and he gifted away about Ac.14.00 acres of land to Defendants 1 and 2 separately in the year 1955. Schedule 'Chha' properties were sold by late Asgar Ali to different persons and the purchasers have been possessing those properties separately. As the said purchasers were not made parties, the suit was not maintainable for non-impleation of those purchasers as parties to the suit. They further averred that the properties mentioned in Schedule 'Cha' were acquired by Transport and Railway Departments. The properties described in Schedule 'Ga' belonged to the Government and their father Sk. Asgar Ali had got the same on annual lease basis and after the death of Sk. Asgar Ali in the year 1966 the properties had not been leased out till 1971. In the year 1971 Defendants 1 and 2 got fresh lease in their names and they constructed pucca houses thereon and rented out the said houses. Therefore, the property described in Schedule 'Ga' was not liable for partition.

4. So far as compensation received by Defendants 1 and 2 from the Transport and Railway Departments in respect of Schedule 'Cha' properties is concerned, it was averred that the same was received by Sk. Asgar Ali and as Defendants 1 and 2 have not received the same, they are not liable to get any share therefrom. As such, they prayed for dismissal of the suit. The suit was disposed of on 21.9.1988 on contest. The Trial Court on the basis of evidence on record held that the Plaintiffs have no claim over the properties mentioned in Schedule 'Ga' inasmuch as the properties described thereunder belong to Government and are being leased out and renewed from time to time, and the Plaintiffs' father has absolutely no right over the said properties. As such Plaintiffs cannot claim any share over such properties. After the death of Sk. Asgar Ali in the year 1966, the property was not leased out till 1971. In the year 1971, Defendants 1 and 2 in their personal capacity applied