The main legal point established in the judgment is that a partial partition in a Hindu joint family is permissible under law, and the burden of proof lies on the party asserting a particular state of things.

JUDGMENT :

Krushna Ram Mohapatra, J. - In this appeal, appellants, who are defendant Nos. 5, 6 and 7 in Title Suit No. 44 of 1986, assail the judgment and decree dated 8th May, 1991 and 28th June, 1991 respectively passed therein by learned Sub-Judge, Sonepur. One Parasu Patra was the common ancestor in a Hindu joint family. He died leaving behind his five sons, namely, Daman, Chaitan, Abhiram, Sankuri and Pandab. Successors in interest of the branch of Chaitan, Sankuri and Pandab filed Title Suit No. 44 of 1986 for partition contending that Parasu had properties in village Jamgaon and Gandabahal. The eldest son, Daman had separated himself since long by taking his share in village Jamgaon. Other properties in village Gandabahal measuring an area of Ac.20.399 decimals remained joint and the successors in interest of the rest four branches of the common ancestor (Parasu) were enjoying the same jointly. But, for the sake of convenience, they were possessing and cultivating different parcels of the land without any partition between them by metes and bounds. Thus, their names were jointly recorded in the 4th Settlement ROR published in the year 1954 in Khata No. 43 (for short, 'Suit land'). When the matter stood thus, defendants 5 to 7, without consent of other co-sharers, sold an area of Ac.0.630 decimals from out of Ac.1.200 decimals of Plot No. 97 and Ac.0.440 decimals out of Ac.0.920 decimals from Plot No. 96 to defendant No. 10 by Registered Sale Deed on 6th April, 1981. Those were valuable pieces of land of the joint family. When the plaintiffs came to know about such act of defendants 5 to 7, they claimed partition of the suit properties to which the defendants did not pay any heed. Finding no other alternative, the plaintiffs filed the suit for the aforesaid relief. They also prayed that the land sold by defendants 5 to 7 may be allotted and adjusted to their share and in case it is found that they have sold lands in excess of their share, direction should be made to pay compensation for the land they sold in excess of their share.

2. Defendants 1 to 4, 8 and 9 were set ex parte. Defendants 5 to 7 filed their joint written statement refuting the allegations made in the plaint contending that there was a partition between the five sons of Parasu 70 years back and in that partition, eldest son, Daman, got his share in village Jamgaon. Other four sons got their share of land in village Gandabahal. Each of the five sons were dealing with their share of properties independently by sale, mortgage and otherwise. The legal heirs of Pandab had already disposed of their share. Son of late Chaitan, Jagabandhu, being aggrieved by the act of Pandab, had filed Title Suit No. 39 of 1969 for partition which was dismissed. Hence, the present suit for partition would be barred by res judicata. The entries in the R.O.R. published in the 4th Settlement in 1954, were not correct. Since there was a complete partition in respect of five sons of Parasu, the suit was not maintainable. Hence, they prayed for dismissal of the suit.

3. Defendant No. 10 filed his separate written statement denying the allegations made in the plaint and contended that he was under a bona fide belief that the land including plot Nos. 96 and 97 which he had purchased from defendant No. 5 was his exclusive property. Defendant No. 5 executed the sale deed on 06.04.1981 and delivered possession to him. Defendants 6 and 7 had consented to such sale. Defendant No. 10 after purchase has been residing over the said plots by constructing his residential house. Thus, he contended that the sale was binding on all the co-sharers and the suit was not maintainable being barred by law of limitation. Hence, he prayed for dismissal of the suit as against him.

4. Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as seven issues, out of which Issue Nos. 2 and 3 are relevant for consideration in this appeal. The same are reproduced hereunder.

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